text:
    YOUNG v. STATE.
    (No. 3695.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    Rehearing Denied Dee. 15, 1915.)
    1. Homicide <&wkey;120 — Manslaughter—Killing Under Excitement.
    Where, on account of a difficulty over a crap game, deceased advanced on defendant as if to attack him, when the latter drew his pistol and fired one shot, whereupon deceased abandoned the difficulty and fled, and defendant, while laboring under the excitement and passion of the moment, shot and killed him as he fled, defendant was guilty of manslaughter, not murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 215; Dec. Dig. &wkey;>120.]
    2. Criminal Law <&wkey;940 — Appeal and Error-Denial of New Trial — Newly Discovered Evidence.
    Where defendant testified that he shot deceased in a difficulty over a crap game while the latter’s right side was toward him, and decedent’s shirt disclosed only holes in the back, though his coat, brought into court after trial, had a hole in the front, defendant having had proper process issued to bring such coat into court during trial, denial of new trial for the newly discovered evidence was prejudicial error, as the condition of the coat tended to corroborate defendant’s testimony that he shot deceased when the latter was advancing toward him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. &wkey; 940.]
    3. Homicide <&wkey;188 — Evidence—Materiality — Reputation op Decedent.
    In a prosecution for murder resulting from a difficulty over a crap game, the exclusion of testimony, introduced by defendant, that deceased had a bad reputation for peace and order, was a turbulent and violent man, would execute any threat he might make, and generally went armed, was erroneous, as the testimony was material to the issue whether defendant was only guilty of manslaughter as having killed deceased while laboring under the excitement and passion induced by deceased’s own attack upon him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 357; Dec. Dig. <&wkey;188.]
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Cooper Young was convicted of murder, and he appeals.
    Reversed and remanded.
    A. C. Oliver, Jr., of Douglassville, and O’Neal & Allday, of Atlanta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant when tried was convicted of murder, and his punishment assessed at five years’ confinement in the penitentiary.

The state’s evidence is that appellant, deceased, and some other negroes were engaged in a game of craps in the woods. Deceased losing all his money, he requested a brother of appellant, B. B. Young, to pay him 15 cents that he owed him. B. B. Young declined to pay it then, when deceased remarked if he (B. B. Young) placed down any more money on the game he was going to pick it up. Another brother of appellant, Tot Young, said to deceased, “They are paying off in Texas for picking up.” Deceased replied he was not talking to Tot, and started towards him, when Tot grabbed a brick or rock and drew it back as if to throw it or strike with it. Deceased jumped behind another negro, when appellant drew a pistol, and, some one calling the attention of deceased that appellant had a pistol, he broke and ran, when appellant fired at him five times, striking him twice in the back, killing him.

Appellant’s witnesses would have the difficulty begin about in the same way, except they say: When Tot Young made the remark to deceased about paying off for picking up, that deceased drew his knife and started towards Tot, saying: “I am tired of being run over. I will kill all of you sons of bitches.” That it was at this time Tot grabbed the brick or rock, and deceased jumped behind another negro. Appellant had said nothing up to this time. That Tot Young and deceased were dodging about. Appellant had his hand in his pocket, and George Coleman grabbed him. That deceased began to edge towards appellant, shoving another darkey in front of him, when Mitch Dickerson called to George Coleman to release appellant, and said: “Don’t you see that son of a bitch coming up with his knife? He will cut hell out of him.” Coleman released appellant, when appellant says he called to deceased : “Uncle Booker, don’t you come up on me with that knife.” That deceased replied, “I ain’t afraid of you,” and kept coming, when he drew his pistol and fired. That, as he fired, deceased turned his right side towards him. That deceased then turned and took a step or two away from him, and he continued to shoot until deceased fell, firing five shots from an automatic pistol.

On the trial of the case the state produced the shirt and undershirt deceased had on, showing two bullet holes in the back of them, and none in front. On the trial of the case, when Henrietta Samuels, the wife of deceased, was introduced as a witness to prove up the two shirts, on cross-examination, she was asked where was the coat deceased had on, and she answered that it was at her home, and, when asked why she did not bring the coat, she said the sheriff told her not to bring it; just to bring the shirts. After the trial, Justice Carloe went to the house of Henrietta Samuels and got the coat deceased was wearing on the day he was shot, and in addition to the two bullet holes in the back it had a bullet hole in front on the right side near the button, and appellant asked for a new trial on account of this newly discovered testimony. There was apparently no reason wliy appellant should know that the coat had been struck in front; it is true he testified deceased wheeled and threw his right side towards him as he fired the first shot, hut he did not know he had struck deceased. When the coat was not brought into court by deceased’s wife, this aroused their suspicion, and, as soon as the trial was over, they sent the justice of the peace to examine it. The question is: Was it not the duty of appellant during the trial to ask for process for the coat? It could doubtless have been obtained then if proper process had been issued. The bullet hole in front of the coat was a most material fact to appellant. It supported his testimony that deceased was advancing on him just as he shot, and would have a tendency to disprove the evidence of the state that deceased was running from appellant and had his back towards him when the first shot was fired. The testimony would tend strongly, to say the least, to reduce the offense to manslaughter ; for if deceased was advancing on appellant when he drew his pistol and fired the first shot, and deceased then abandoned the difficulty and fled, and appellant, while laboring under the excitement and passion of the moment, shot as he fled, this would be a case of manslaughter and not murder. Had appellant been found guilty of manslaughter, the testimony would not be so material; but he was adjudged guilty of murder. If this was the only complaint, we would hardly feel authorized to reverse the case, for appellant should have had the coat brought into court during the trial or made an effort to do so, by having proper process issued, and if he had done so, and the coat not obtained, it would certainly present reversible error. However, as the court erred in excluding certain testimony offered by appellant on the - trial, the rejection of that testimony, together with the above facts, we think, requires this case to be reversed.

Appellant introduced a number of witnesses who testified that the reputation of deceased for peace and order was bad; that he was a turbulent and violent man, and would execute any threat he might make; that he generally carried a shotgun or rifle with him. He desired to prove, also, by Mr. Cutwright and other witnesses, that deceased had the general reputation of always going around with a pistol. This testimony was excluded by the court. Appellant states that the purpose of the testimony was to show that deceased went armed all the time, and for that reason it was reasonable for appellant to believe that he was armed at the time of the difficulty. Appellant testified deceased was advancing on him with an open knife at the time he drew the pistol and fired, and he thought his life was in danger; he had testified as to threats of deceased communicated to him. Every one is supposed to know the general reputation of a man in the community in which he lives — appellant as well as the balance of mankind. If deceased had the reputation of always going armed with a pistol, at all times, it would be reasonable for appellant to believe that deceased was so armed at the time, and such testimony would materially aid the jury in passing on the issues involved in this case in judging the appearances to appellant at the time. The testimony was admissible, and the court erred in excluding it.

Taking this view of the case, it is unnecessary to discuss the bill complaining of the action of the court in overruling his application for a continuance. Strictly speaking, it does make a legal showing, but there are equities presented that appeal to one’s judgment; for, while due diligence may not be shown, yet circumstances are stated in a measure excusing this lack of diligence. However, it is unnecessary to pass on this question in view of the disposition of the case.

Reversed and remanded.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J.

license: Public Domain

text:
    TYLER v. STATE.
    (No. 3745.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    Rehearing Denied Dec. 15, 1915.)
    1. Cbiminal Law <&wkey;511 — Accomplice Testimony — Cobbobobation.
    An accomplice may be corroborated by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. <S&wkey; 511.]
    2. Criminal Law <&wkey;784 — Instructions — Necessity — Circumstantial Evidence.
    Though the corroboration of an accomplice be by circumstantial evidence, yet, the accomplice testifying directly to a confession by defendant, no charge on circumstantial evidence is required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dee. Dig. @=5784.]
    3. Criminal Law <&wkey;511 — Accomplice Testimony— Sufficiency op Corroboration.
    F., an accomplice, having testified to a confession by defendant of the theft, and that, having to make good to' the owner for part of the property sold by him, he asked defendant for money therefor, testimony of D. that defendant telephoned him that he was in trouble, and at night, with F. and another, came to him and borrowed money, giving his note, and after-wards got the note from him, saying that the grand jury were investigating the robberies there, and he did not want them to get hold of the note, is sufficient corroboration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. &wkey;? 511.]
    4. Criminal Law <&wkey;508 — Accomplice Testimony.
    On a prosecution for theft *of tires, what was said and done by F. and P., accomplices, as shown by F.’s testimony, after defendant phoned F. to come to a certain place, and that he had got to go, but that P. would tell him what they wanted, is admissible against defendant, F. testifying that defendant subsequently came to him, and asked what he did with the tires, and told him he owned half of them, and sold to him a half interest therein.
    [Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §§ 1099-1123; Dee. Dig. &wkey; 508; Witnesses, Cent. Dig. §§ 244r-248.)
    5. Ceiminal Law &wkey;480 — Opinion Evidence —Value.
    Witness showed himself competent to testify to value of tires stolen, by testimony that the value of tires was uniform over the state, and that he knew their value.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1069; Dec. Dig. <&wkey;480J
    6. Criminal Law <&wkey;442 — Documentary Evidence — Waybill—Authentication.
    The original waybill, showing the contents of a car stolen from, was admissible, without having its correctness testified to by the person who made it out, the station agent, at the place of the theft, testifying that the car arrived at such station, and was placed in the yards, and that the waybill shown was the one used in its transportation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1027; Dec. Dig. <&wkey;>442.]
    7. Larceny <&wkey;32 — Ownership op Property —Cars in Railroad Yard.
    Ownership of tires, stolen from a car in railroad yards, is, on a prosecution for the theft, properly alleged to be in the station agent at that point, he being in charge of the road’s freight there, and his possession and ownership attaching by virtue of his agency, without any necessity of taking actual possession.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. <@=^32.]
    Davidson, J., dissenting.
    Appeal from District Court, McLennan County; Richard I, Munroe, Judge.
    Earl Tyler was convicted, and appeals.
    Affirmed.
    Tom M. Hamilton, R. Murphree, and J. E. Synnott, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at two years’ confinement in the state penitentiary.

One of the main contentions of appellant is that the testimony of the accomplice is not corroborated in a manner tending to connect him with the commission of the offense. That a theft of eight automobile wheels and tires was shown by other testimony is not contested. J. L. Koerber testifies that the property was stolen out of Chicago, Rock Island & Pacific car No. 261655. It may be admitted that they were stolen out of the car while the car was in the yards at Mart, Tex., was shown only by circumstantial evidence, outside of the confession of appellant to the accomplice, Charlie Foster. But an' accomplice may be corroborated by circumstantial evidence as well as by direct testimony. And when a confession is proven, although the corroboration is shown by circumstantial evidence, no charge on circumstantial testimony is required. Wampler v. State, 28 Tex. App. 353, 13 S. W. 144; Heard v. State, 24 Tex. App. 103; 5 S. W. 846; Branch’s Crim. Law, § 203, and cases cited.

The'accomplice, Foster, testifies: That on the night of the 23d of June, appellant, Tyler, called him over the telephone and asked him to come to Wilburn’s restaurant. Foster at that time was driving a service automobile in Mart. That he went to the restaurant and saw appellant, and appellant said:

“I have been called out, and I have not got time to talk to you, Mr. Patrick will tell you what I want.”

Patrick came and got in the car, and told witness they had some automobile wheels and tires at a point Patrick told him to drive to. That he went there, and he and Patrick loaded on eight automobile tires and wheels and hauled them to the cotton yard, and deposited them at that place. That they found the tires and wheels at the dividing point of the railroad right of way and the Texas Land Improvement Company lots. When Tyler came back from his run (he being a brakeman on the International & Great Northern Road) he approached witness and asked him, “What did you and Patrick do with those tires?” and wanted to sell them to witness; said that half of them belonged to him (Tyler). Witness says he bought Tyler’s half interest in the tires and paid him $30 for his interest, and afterwards bought out the interest of Patrick in the tires. Some time afterwards the railroad discovered the location of the tires and wheels, and Foster gave up four of the tires to the railroad company, and paid them for four he had sold. He testifies, when he ascertained the railroad company had located the tires, he went to appellant and Patrick and told them about the discovery, and he would have to make good the four he had sold, and appellant and Patrick agreed to furnish the money; that they telephoned to Erby Driver at Waco, and told them they wanted to see him, and would be over; that all three of them went to Waco and saw Driver; that Tyler and Patrick told him they were in trouble, and wanted to borrow $75 from him, with which Foster was to make good the four tires he had sold; that Driver did not have the money, and borrowed it from Morris Hillman, witness and Driver making the note to Hill-man. He says appellant and Patrick told Driver at the time he (Foster) was not to pay any part of the money borrowed, but they (appellant and Patrick) would pay Driver, and they did give their notes to Driver for the money borrowed; that he took the $75 and paid for the tires he had sold; that when he told Tyler about the railroad company being after the tires he had procured from him and Patrick, Tyler, appellant, admitted to him they had stolen the tires and wheels from the railroad company out of the car. Plis testimony made a plain case of theft against appellant, and the only question is, Is it sufficiently corroborated to connect Tyler with the commission of the offense?

Erby Driver is not an accomplice nor accessory, and, as we view the record, there is no evidence tending to show that he is, nor is it contended that he is an accomplice in the motion for new trial and brief of appellant filed herein, and we think his testimony alone is sufficient corroboration. All he did was to loan Tyler and Patrick the money to pay for the four tires that had been sold. It is not shown that he knew at this time what kind of trouble they were in. If one loans another money to pay the owner for .the stolen property, this would not make him an accessory. He says appellant, Tyler, called him over the phone and told Mm he was in trouble, and wanted to see him; that appellant, Patrick, and Foster did come to see him about 2 o’clock in the morning, and asked him to loan them some money; that appellant, Tyler, said to him:

“ ‘Erby, I am in trouble; I want some money.’ I said, T haven’t got the money, but I think I can get you the money.’ We went to Mart the next clay and got the money. We got the money from Lawrence Hillman of Mart Loan Company. I put up a one-carat diamond ring to secure the money. Charlie Foster signed the note that was given to Hillman. There was a note made for $95. I borrowed $S5. I used $10 of the $85, and turned over to Foster $75 by Tyler’s and Patrick’s request, but there was a note made for $95 to come due the 17th day of October. The note was made to me and signed by Charlie Foster, and it was verbally agreed between the four of us, myself, Tyler, Patrick, and Foster, that Foster was not to pay the note, and that they would pay it. The note was made in my favor; Charlie Foster filled up two notes, First National Bank Notes of Mart, and filled them, out himself, and suggested that I get Tyler and Patrick to sign them, and he took them and got them signed, Charlie did. I left them at the old corner drug store. They were payable to me. The amount was $41.50 each. They were signed by Earl Tyler and Arthur Patrick; they both signed each note. I left the notes in the safe at the corner drug store in the care of Mr. Castlebury, manager of the corner drug store. They remained at the corner drug store until the grand jury met some time that fall—I forget just when it was, along in September, I believe. When I did remove them from the old corner drug store, I gave them to Tyler and Patrick at their request; they told me the grand jury was in session at Waco, investigating the burglaries at Mart, and that they didn’t want the grand jury to get hold of the notes [meaning Earl Tyler and Arthur Patrick], They says, ‘We will pay you;’ says, ‘You don’t have to keep the notes.’ ”

We tMnk tMs directly corroborates the accomplice in a way tending to connect appellant with the offense. In addition to this it is shown by other witnesses that the three men did go and see Erby Driver that night; Driver being also a brakeman on the International & Great Northern Road.

Appellant contends that what was said and done by the witnesses Foster and Patrick, after appellant called witness over the phone and told him “he had to go, that Patrick will tell you what we want,” is not admissible against him. As the evidence shows that Tyler subsequently went to witness and asked him, “What did you and Patrick do with those tires?” and told him he owned half of them, and sold the witness a half interest in them, the court did not err in admitting the testimony.

Witness H. D. Schleeter was permitted to testify that the value of the eight tires was $269.53. Appellant objected to this testimony, as the witness had not qualified to prove the value of tires in Mart, Tex., at the time they are said to have been stolen.. The court, in approving the bill, qualifies it and, as qualified, the bill presents no error. That witness testified the value of the tires was uniform over the entire state, and he knew their value.

The original waybill, showing the contents of the car, was admitted in evidence, over appellant’s objection. The evidence showed this waybill was made out in St. Louis, the original point of shipment, and appellant contends that the person who made it out was the only person who could testify to its correctness. Mr. Johnson, station agent at Mart (that place being a division point), testified it was the waybill delivered him for the Chicago, Rock Island & Pacific car, and was the bill used in forwarding the car, and is the authority that it is shipped by. It is a matter of common knowledge that these waybills are made out at the original point of shipment, delivered to the conductor of the train which hauls the car, and at the end of his division delivered to the station agent, and, when another train is made up to continue the transportation, delivered to that conductor, and so on to the point of destination. Mr. Johnson was properly permitted to testify that this car arrived in Mart and was placed in the yards on the 23d of June, and forwarded to Houston on the 24th of June, and the waybill shown was the one used in transportation of the car.

As there is no question raised by the evidence in this record that Mr. Johnson was not the agent of the road at Mart; that this Chicago, Rock Island & Pacific car No. 261-655 was placed in the railroad yards at Mart on June 23d, and left the yards on the night of June 24th, the ownership of the tires was properly alleged to be in Mr. Johnson while in Mart. He was in charge of the railroad company’s freight at that point. There is no evidence tending to show otherwise, either directly or indirectly. Nor did he have to go out and take physical possession of the property to become special owner. 1-Iis possession and ownership, by virtue of his agency, attached when the car, containing the tires, was placed in the yards at Mart, Tex., and continued until the car left the yards at Mexia. The confession of appellant to Foster, and all the facts and circumstances, would show that the tires were taken out of the car while in the yards at Mart; therefore there was no evidence calling for a charge that:

“You must believe that said property was in the actual possession of the said E. E. Johnson, and in case you have a reasonable doubt of that fact to acquit.”

The evidence suggests the possession of no other or different person; therefore the court did not err in refusing this charge.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). I wrote an opinion reversing the judgment, but my Brethren would not agree with me, and filed their opinion written by Judge HARPER affirming.

I do not care to enter into any lengthy statement of the facts or reasoning why I cannot concur. The state relied upon the testimony of the accomplice, Foster, for a conviction. Eliminating his testimony, there is no evidence which shows that appellant was ever in possession of the alleged stolen property. Even the accomplice does not undertake to place defendant in possession of the property. The only evidence from such accomplice is that appellant asked him, on one occasion, what he and Patrick did with the tires, the alleged stolen property, stating that he had a half interest in them. There was a conversation between the accomplice, Foster, and appellant, to the effect that appellant told Foster to see Patrick, whom the state claims assisted in stealing the tires, who would talk to him. If all this be treated as incriminating, it does not connect appellant with the taking, nor does any statement, as I understand the testimony, from any source, the accomplice or otherwise, so connect appellant. The state does not undertake to show that appellant was ever in possession of the property. He'was in no way connected with the original taking otherwise than the above statements of this accomplice, and no statement testified by Foster placed appellant in possession of the tires at any time or place. He excludes by his testimony the fact he ever saw appellant in possession of the property. Appellant could be half interested in the tires in many ways without being a principal. It was not necessary that he be connected with the taking as a principal to be interested in the proceeds of the sale or disposition of the tires. Foster testified that he was in possession of the tires and sold some of them. He was seeking to avoid responsibility. The accomplice is not corroborated, nor sought to be corroborated, as to the alleged statements of appellant. Nor did appellant make a statement that he took, or assisted in taking, the tires, even under the evidence of the accomplice. It has been held that where a crime is shown, the accused may be connected with it by his confession, but in order to constitute this confession evidence of guilt of theft in this case it must show that he participated in the taking, because the indictment only charged him as a principal. It has also been held that a confession must connect, as in this case, the party making the confession with the. taking, for he cannot be the thief unless he was so connected. If appellant made the statement to this accomplice of having half interest, this does not show he took the property, and the accomplice is not corroborated even as to that statement. From any view point, there is no fact corroborative of the accomplice that appellant made such statement. Extrajudicial verbal confessions are not sufficient to convict, even when the taking is shown, when that confession comes alone from the accomplice. Corroboration is necessary, and none was offered or introduced by the state. The testimony of Driver does not corroborate the accomplice as to the taking, even if it is corroborative of any fact criminating appellant in the matter. The court, in a general way, charged the jury that if appellant took the property, he would be guilty as a thief. Without this being shown, he could not be convicted under this indictment. This was specifically called to the attention of the court in requested charge, which was refused. As before stated, however, the court, in a general way, informed the jury, if defendant took the property, etc., he would be guilty, but the special charge called the attention of the jury to the law that it must be shown by evidence that he was connected with the original taking specifically, and was not only not given, but a special charge was refused. In my judgment, this charge under the facts should have been given. This error is emphasized by reason of the fact that the court charged in regard to principals. If such charge be justified, then it was incumbent on the court to give the converse of the proposition, to wit, the law applicable to the facts, if appellant was not connected as a principal, and especially so under the facts of this case. This was the vital question of the case. If he was a principal and the facts showed it to the satisfaction of the jury, he should be convicted, but where the facts are as shown by this record, and there is no evidence showing that he was connected with the taking of the property, the court should have charged the jury that, unless he was a principal, they could not convict. The state must show this beyond a reasonable doubt by evidence. This matter was properly presented by counsel for defendant, and exceptions timely reserved to the charge and refusal to give the special requested instructions. For these reasons, without further elaboration, I cannot agree to the affirmance. The judgment ought also to be reversed, and the cause remanded, for want of sufficient evidence to support the verdict.
      <§sx>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    SALTER v. STATE.
    (No. 3834.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.
    On Motion for Rehearing, Dec. 22, 1915.)
    1. Ckiminal Law i&wkey;829 — Instructions — Conspiracy.
    Where accused claimed that he and his brother approached deceased to serve written notice for him to vacate the premises he was occupying, and that deceased fired on them, whereupon they returned the fire, killing him, and wounding his wife, while the state claimed that accused and his brother had lain in wait for deceased, the refusal of the court to charge on the law of conspiracy is not error, where proper charges on murder, manslaughter, subsequent threats, self-defense, and the law of principals were given, this being so, though accused claimed that he acted in self-defense and in defense of his brother.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.j
    2. Criminal Law <&wkey;1056 — Appeal—Objections — Instructions.
    Where there were no exceptions preserved on trial to the charges given, no errors not of a fundamental nature can be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <&wkey;> 1056.]
    On Motion for Rehearing.
    3. Criminal Law <&wkey;1059 — Exceptions — Sufficiency.
    Exceptions to the refusal of special charges are not equivalent to exceptions to the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dee. Dig. &wkey;>1059.]
    4. Criminal Law <&wkey;1086 — Appeal—Record —Exceptions.
    Where exceptions are taken to the court’s charge before it is read to the jury, the record must show such exceptions in order for them to be taken advantage of on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2770, 2772, 2794; Dec. Dig. &wkey;1086.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Leonard Salter was convicted of murder, and he appeals.
    Affirmed.
    J. G. Wool worth, of Carthage, J. W. Mc-David and Robt. T. Jones, both of Henderson, and P. P. Long and H. N. Nelson, both of Carthage, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at 15 years’ confinement in the penitentiary.

The theory of the state was that the parties, defendant and his brother Emmett, were at the blacksmith shop, which seems to have been the property of one or both of them, and the deceased, in a wagon with his wife and children and a girl who was not his child, drove by where they were. The defendant’s theory was that there had been trouble between the defendant and the deceased, growing out of a matter of tenancy, and that on this particular morning they were there for the purpose of serving written notice on deceased to vacate the premises he was occupying, and that, as they approached the deceased, he fired, and they returned the fire, killing the deceased and wounding his wife an’d all of his children. They further contend that the wounding of others than the deceased was accidental or not intentional; that they were all in range and in a wagon, and that the shot scattered and struck them. The theory of the state was that the appellants went to the shop armed for the purpose of killing the deceased, and when he passed they executed their purpose. The testimony is voluminous, but this is a sufficient statement so far as is thought necessary to write.

The court submitted murder, manslaughter, and self-defense, the latter being from two standpoints: First, in defense of himself against the deceased; and, second, that the part he took in the tragedy or difficulty was in defense of his brother. Also it may be stated it is claimed that his brother did the killing in defense of appellant. These matters are all in the record in one form or another. The court submitted the question, we think, in appropriate language, and in such terms as the law requires. He also submitted the law of principals, that is, if they were acting together, etc., in pursuance of a common design and purpose, and did the killing, it would be murder or manslaughter, as the jury might find from the facts and subsequent charges in regard to manslaughter. The law of threats was also given in charge. There were no exceptions taken to the court’s charge at the time it was read to the jury; the only exception being found in the motion for new trial. The appellant asked one charge, which was given, submitting the issue of assault to murder. He also asked a charge with reference to conspiracy, which the court refused. We are of opinion that there was no error in refusing a charge on conspiracy, in view of the charge given by the court on principals. There may be cases where the law of conspiracy ought also to be given in addition to the law of principals, or where it would be better to charge on conspiracy and not on the law of principals. But under the facts of this case it occurs to us the court was right in charging on the law of principals under the peculiar facts, and having done so, was not in error in refusing the charge on conspiracy. As before stated, the erroneous rulings in regard to the charge were only mentioned for the first time in the motion for new trial, and they, not being of a fundamental nature, under our late statute, will not be the subject of revision. But, take the charge as a whole, we believe the court submitted the law correctly, and did not err in refusing the special requested instructions. The judgment, therefore, will be affirmed.

On Motion for Rehearing.

There is one matter presented, in motion for rehearing which will be noticed. It is contended in this motion that this court erred in failing and refusing to pass upon and not sustaining first paragraph of the motion for new trial in the court below, as pointed out in his written brief on the original submission. The statement under this proposition is this:

“Before-the charge was read to the jury, appellant objected to the portion of the charge complained of, and excepted to the overruling of his objection to the same, and also asked a special charge, which will be found on pages 25 and 26 of the transcript, and brought forward in bill of exceptions No. 5.”

It is also contended that the statement in the original opinion, as follows:

“There were no exceptions taken to the court’s charge at the time it was read to the jury”

—is not borne out by the record, and that a close inspection of the transcript will show an exception was made to the court’s charge before it was read to the jury. We find the original opinion is correctly quoted in stating there was no exception taken to the court’s charge before it was read to the jury. Going to the bill of exceptions referred to, I think counsel misconstrued the full import of the language of the bill. If he did not, then this court did. The bill is No. 5, and is found on pages 34 and 35 of the record. It begins by stating:

“Be it remembered that upon the trial of the above entitled and numbered cause, the defendant presented to the court written instructions, as follows, to wit.”

Then follows the requested instruction, unnecessary to copy, which was refused by the court. Then follows this language:

“Whereupon the defendant then and there in open court, and before the court read his charge to the jury, excepted to the action of the court in so refusing to give said instructions, and now tenders this his bill of exception No. 5.”

We are still of the opinion that there was no exception reserved to the court’s charge. The exception recites that the special charge was asked and refused, and it was asked before the court’s charge was read to the jury, and refused by the court, and he took exceptions to the refusal to give this special charge. This is the exact condition of the record, whatever conclusion may be reached by the court or counsel. We understand that an exception to the refusal to give a special charge is not an exception to the court’s charge and its errors, or supposed errors, as required by the statute. The exception to the court’s charge before being read to the jury is what the statute requires. The exception to the refusal to give requested instructions is a different proposition. But this much has been written simply to ■ keep the record straight and show the matter as it actually occurred, or as actually shown at least by the record.

If there were any exceptions taken to the court’s charge before it was read to the jury, there is nothing in the record to verify it, and we are not informed, so far as the record is concerned, that there were any such exceptions. Of course, where exceptions are taken to the charge before being read to the jury, this must be verified in some way so as to inform this court such procedure actually occurred. Verification of matters of that sort is required. However that may be, even if an exception had been reserved to the court’s charge, in addition to the exception to the refusal to give the special instruction, it would present no reversible error, inasmuch as we are of opinion the court fully charged the law applicable to the case and as favorable as the facts required.

We are of opinion that the motion for rehearing shows no reason why the original opinion was wrong, and therefore the motion is overruled.
      cgz=3For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    WILGANOWSKI v. STATE.
    (No. 3830.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Criminal Law <©=3538 — Evidence—Concessions — Corpus Delicti.
    The corpus delicti cannot be proven by accused’s confession alone in homicide cases, particularly in view of Pen. Code 1895, art. 654, declaring that no person shall be convicted of any grade of homicide unless the body of the deceased or portions of it are found and sufficiently identified to establish the death, but circumstantial evidence may be considered on the question of identification and may with the confession establish the corpus delicti.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1227-1229; Dec. Dig. <©=> 538.]
    2. Criminal Law <$=>538 — Evidence — Confession — Corpus Delicti.
    A voluntary confession may with other evidence be considered as establishing the corpus delicti.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1227-1229; Dec. Dig. <©=3 538.]
    3. Criminal Law <$=>534 — Evidence — Confession.
    That accused killed deceased may be established by her confession, coupled with circumstantial evidence, though the confession alone is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1202-1205, 1222-1224; Dec. Dig. <©=>534.]
    4. Homicide <©=>228 — Offenses — Evidence —Sufficiency.
    In a prosecution for homicide, evidence held sufficient to establish the corpus delicti and that accused committed the act, when taken in connection with her confession.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. <©=>228.]
    5. Criminal Law <©=>763, 764 — Instructions —Weight of Evidence.
    In a prosecution for homicide, where the court charged in accordance with the statute that no conviction could be had unless the body or portions of the body of deceased were found and identified, it is proper to refuse an addition that deceased’s absence could not be considered, for that qualification would be on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748,1752, 1768, 1770; Dec. Dig. &wkey;763, 764.]
    6. Criminal Law <&wkey;5-17 — Evidence — Confession.
    An oral confession by accused made to the sheriff, who claimed to be her friend, that she had murdered her husband, burned his body, and placed his bones in a hole, is admissible where the sheriff discovered the bones.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1146-1156; Dec. Dig. 517.]
    7. Criminal Law &wkey;>814 — Instructions—Applicability to Evidence.
    Where the prosecutor’s testimony that accused was warned before she made a written confession was uncontradicted, the refusal of charge, that the confession should not be considered if not freely and voluntarily made, was not error, though it would otherwise have been presumed that the confession was the result of a previous oral confession elicited by promises.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <@=>814.]
    8. Criminal Law c&wkey;448 — Evidence — Conclusion op Witness.
    A question whether a confession was voluntarily made and signed is properly'refused as calling for the conclusion of the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. &wkey;448.]
    9. Criminal Law t&wkey;404 — Evidence — Admissibility — Bones.
    Where there was medical testimony that bones were human bones, and accused’s own confession showed they were the bones of her husband, whose bones she had placed in a hole after killing him and burning his body, such bones were admissible in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. <@=5404.]
    10. Homicide <&wkey;179 — Evidence — Admissibility.
    Where accused claimed she was insane when she killed her husband, evidence of her acts and conduct while in jail is admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dee. Dig. <§=>179.]
    11. Criminal Law <&wkey;>665 — Evidence—Placing Witness Under Bule.
    The jailer being an officer of the court may, in a prosecution for homicide where insanity was urged, testify as to accused’s acts in jail, even though he was not, as were other witnesses, placed under the rule.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566% ; Dec. Dig. &wkey;> 665.]
    12. Criminal Law <&wkey;476 — Expert Testimony — Cause and Effect.
    Where deceased testified that she killed her husband with a wooden maul, medical testimony as to whether a woman of her size could strike a death blow with such an instrument is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. <&wkey;476.]
    13. Homicide <s&wkey;174 — 'Evidence — Admissibility.
    Where accused, who claimed that her husband had gone to another city, described his dress, evidence that the clothing described was found in a trunk in possession of her son is admissible.’
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dee. Dig. &wkey;174.]
    14. Criminal Law <&wkey;404 — Demonstrative Evidence.
    Teeth, buttons, and metal articles found at the place which accused pointed out as being where she burned her husband’s body, are admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. &wkey;404.]
    15. Criminal Law <&wkey;730 — Trial — Argument of Counsel.
    In a prosecution for homicide, where it appeared the sheriff elicited an oral confession by telling accused he was her friend, argument by the prosecutor, “Didn’t (the sheriff) take her to Waco to save her from the wrath — ’’which was then interrupted by objection and which the jury were promptly directed to disregard, is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=>730.]
    16. Homicide <&wkey;169 — Evidence — Admissibility.
    In a homicide case, evidence that deceased told a friend, who warned him against marrying accused, that he regretted his venture, is properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. &wkey;169.]
    17. Criminal Law <&wkey;448 — Evidence — Admissibility.
    Where accused asserted her insanity, a witness may testify that he saw nothing unusual when she interpreted for her husband upon whom he called.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. <&wkey;>448.]
    18. Criminal Law <&wkey;656 — Evidence —Remarks of Court.
    Where accused defended on the ground of insanity, and a physician, who was familiar with her family and testified that some of them were afflicted with epilepsy and that such disease was hereditary, admitted on cross-examination that he was not an expert on insanity, the action of the court in remarking that the witness might read the standard authorities but could not testify as an expert was not error; such action not ■weakening the expert’s testimony more than he had weakened it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. <S=> 656.]
    19. Criminal Law <&wkey;1208 — Punishment — Indeterminate Sentence Law.
    Under the indeterminate sentence law, one convicted of murder should be sentenced to confinement for natural life or for not less than five years, and not merely for life.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. <@=>1208.]
    20.- Criminal Law &wkey;>956 — New Trial — Evidence.
    Where accused sought new trial on the ground of testimony that a juror had before he was drawn remarked he would hang her, and the state controverted accused’s showing by affidavit, accused should, if properly diligent, produce for cross-examination the affiant, who resided only a few miles from the courthouse, as the court may hear such evidence by affidavit or otherwise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2073-2391; Dec. Dig. <§=> 956.]

      21. CRIMINAL Law <&wkey;923 — New Trial — Grounds.
    Where the affidavit, that a juror remarked he would hang accused if drawn, was controverted by the juror and by another alleged to have been present at the time, it was not an abuse of discretion for the court to refuse a new trial; accused not producing the affiant to the juror’s remarks.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2225-2237; Dec. Dig. 4&wkey; 023.]
    22. Criminal Law <&wkey;925% — New Trial — Grounds.
    That a juror only incidentally referred to accused’s failure to take the stand is no ground .for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. 925%.]
    23. Criminal Law <&wkey;956 — New Trial — Misconduct or Jury.
    In a prosecution for homicide, accused’s showing held not to establish misconduct by the jury warranting new trial; the only reference to her failure to take the stand being made by a juror who consented to life imprisonment instead of the imposition of the death penalty as he first desired.
    [Ed. Note. — For other cases, see Criminal La tv, Cent. Dig. §§ 2373-2391; Dec. Dig. &wkey;> 956.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    líate Wilganowski was convicted of murder, and she appeals.
    Reformed and affirmed.
    Jennings & Higgins and Oltorf & Oltorf, all of Marlin, for appellant. T. B. Bartlett, Co. Atty., B. H. Rice, Jr., Asst. Co. Atty., and Tom Connally, all of Marlin, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the murder of her husband, and her punishment assessed at imprisonment in the penitentiary for life.

We will not take up the contentions of appellant in the order presented in the bills of exception and in the motion for a new trial, but, instead, in the order presented in the able and exhaustive brief filed by appellant’s counsel.

The first proposition, under the first three assignments, is that, before a person can be convicted of a homicide, the body of the person charged to have been killed, or portions thereof, must be sufficiently identified to establish the fact of the death of said person, which fact cannot be established by an extrajudicial confession alone. The second proposition is, before a conviction can be sustained in a homicide) case, there must be sufficient evidence that the person alleged to have been killed came to his death by some criminal act or agency of another; an extrajudicial confession alone not being sufficient to establish this element of the corpus delicti. These propositions of law we do not understand the state contests, but admits the soundness of each of the propositions, the disagreement being as to whether the evidence adduced on the trial meets the measure of proof required to establish the corpus delicti; that is: (1) That a crime has been committed (the death of Edward Wil-ganowski) by some criminal agency; and (2) that his death was caused by appellant and no other person. It may and will be conceded that the oral confession made to the sheriff, the admissibility of which is not contested by appellant, if sufficient, would prove that Edward Wilganowski is dead; that he was killed by appellant under such a state of facts as would render her act an unlawful one. But, in law, as contended by appellant, these facts cannot be established by her confession alone; there must be other evidence tending to show that Wilganowski is dead, and was killed by appellant under-circumstances rendering the act criminal. But under all the authorities, of this day and time, such proof may be made by circumstantial evidence as well as by positive proof. Outside of the confession of appellant, there is no direct positive proof that Wilganowski is dead, or that, if dead, appellant killed him. To make this proof the state relied upon circumstantial evidence, and the sufficiency of this proof is what, in the last analysis, appellant contests. Now, ignoring both the oral and written confession, what would the evidence show?

Appellant and Edward Wilganowski were husband and wife, and lived together alone in Marlin, Tex. It was the custom of both to attend the Catholic Church on Sunday. The alleged deceased person failed to attend church two Sundays in succession, when his sons, by another wife, approached appellant at the church and asked her where their father was, and she told them he had gone to Ft. Worth to visit a daughter residing there. During the several conversations had, she described particularly how he was dressed, and stated that he had carried $600 with him. A son of deceased went to Ft. Worth and learned that his father had not been to visit his daughter, and, upon the return of this son to Marlin, appellant suggested he must have been killed by a hack driver in Ft. Worth for his money. This son finding the shoes appellant said deceased had worn to Ft. Worth, in the house at Marlin, it aroused his suspicion. Appellant then said she was mistaken; that deceased had purchased a pair of new shoes and had worn them on the trip to Ft. Worth. Upon further investigation, a trunk belonging to deceased was found in the possession of a son of appellant (by a former marriage) in Bryan, and at this place was found the suit of clothes appellant had stated was worn by deceased to Ft. Worth. This son, a daughter, and appellant were all arrested after the clothing was found and placed in jail in Marlin. While they were in jail, a search was made of the premises occupied by appellant, and sewed up in one pincusMon was found something over $750. There is in the. record (outside of the confession) no evidence of how appellant came into possession of the money and why she sewed it up in a pincushion. There was also found sewed up in another pincushion the watch chain and pendant cross worn by deceased in his lifetime, and the cuff buttons usually worn by him. In an old well near the house was found bones, which the experts testify are human bones, and also in this well was found a watch badly burned, and the metal parts of a pocketbook. As to this watch found in the well with these human bones, a son-in-law of appellant, J. J. Blaskey, identified positively the watch found in the. old well as the watch given by him to deceased. He says he recognized it by the crown and by the engraving on the side — then going into details on cross-examination. The metal clasps of a pwcketbook, found also in the well, were identified by the son of appellant as belonging to appellant. This identification is weakened on cross-examination by the witnesses admitting there might be other pocketbooks like the one found, but they are positive their father had one like it. Human bones are also found in a post hole not a great distance from the old well. Witnesses testify to seeing a fire in the yard of appellant and deceased in the nighttime about the date of the disappearance of the deceased, and the watch, pocketbook, and bones all bear evidence that they had been in a fire. There are other circumstances in evidence, but we do not deem it necessary to detail them.

Appellant relies principally on the cases of Follis v. State, 51 Tex. Cr. R. 186, 101 S. W. 242, and Gay v. State, 42 Tex. Cr. R. 450, 60 S. W. 771, as sustaining his contention that the above-detailed facts and circumstances are not sufficient, in connection with the confession, to establish the corpus delicti.

In the Gay Case the evidence was held to be insufficient, as nothing was shown except that Lindemann could not be found, and that only charred bones and some hair were found. Lindemann was shown to have light hair, sprinkled over with gray hair. In the hair found none of the strands were gray, and the court holds this excluded the idea that this was ■ Lindemann's hair. Nothing was found that could be or was identified as belonging to Lindemann, and, in the absence of some showing that the remains were those of Lindemann, the court held that it was not established that it was Lindemann’s body. In that ease there was no confession to aid in establishing the corpus delicti as there is in this case, and that case is no authority to support the contention that the evidence in this case would not sustain the verdict. In the Follis Case, supra, there was a confession, and the testimony of an accomplice. It was held this would be sufficient to sustain the corpus delicti if the accomplice had identified the remains of the deceased, but this the court says his testimony wholly failed to do, but it does say the accomplice testified the decomposed corpse had on shoes with eyelets similar to those worn by McDonald. The court says this would be rather meager testimony upon which to base a finding, as would the testimony in this case if we only had the clasp of the pocketbook, which it may be admitted the evidence only shows that deceased had one like it. But, in addition to such evidence, we have in this record the positive testimony of J. J. Blaskey, who testifies that the watch found with the burnt and charred human bones was the watch of Edward Wilganowski; that he knew it; had worn it himself; and made his father-in-law a present of the watch. In the Follis Case the court seems to hold that the evidence that the shoes were similar might be sufficient if there was evidence that the deceased came to his death by violent means.

What have we in this case? Two people living on the place — one living and on trial; the other missing. In an old well on the place are found the charred bones of a human body, and in a post hole are found other bones of a human body, also charred. All evidence shows that those bones had been in a fire and burned. This is evidence that violence was used to a human body. Now, whose body? With the human bones is found the metal clasp of a pocketbook, like the one owned by Edward Wilganowski when last seen, and in addition thereto is found the case of a watch identified positively as the watch of appellant’s husband. Whose body was it found burned? The evidence, exclusive of the confession, points unerringly to the fact that it was the body of Edward Wilganowski. No other conclusion could be arrived at under this testimony, and the testimony does not suggest, in the slightest degree, that these human bones might be the bones of any other or different person. No other person lived on the place than appellant and Edward Wilganowski. And some of the bones bore evidence they had not been long in the old well and post hole, for the sheriff testifies that a portion of the bones when found had some dead stuff, a slimy something that smelled awfully bad, on them. Does the testimony point to the person who burned this body exclusive of the confession? The watch of deceased (if we now may so term him) was found with the human bones. The chain of this Vatch is found in the possession of appellant sewed in a pincushion, with a cross belonging to deceased attached thereto. In this pincushion is also found the cuff buttoms belonging to deceased. The testimony of deceased’s renters show that he was in possession of money. Money, for which the testimony offered in behalf of appellant does not seek to account, is found in her possession sewed up in another pincushion. She said before her arrest deceased liad $000 in Ms possession. TMs and more is found in her possession, and the testimony-introduced in her behalf gives no explanation of how she came into possession of it. These circumstances point to appellant, and her alone, as the person who burned the body. We are inclined to think, if the confession of appellant had not been introduced and all these facts and circumstances introduced in evidence, a jury would have been authorized to find that the remains discovered in the well and post hole were those of Edward Wilganowski, and to find that he came to his death at the hands of appellant, when no explanation is given as to her possession of the dead man’s property, and the explanation she gave as to his whereabouts is shown to be untrue. No other person is shown to have been missing in the community ; no other person -is shown to have been in position to have burned a human body at this old well, within a few feet of the back door of appellant’s residence. No fire could have been maintained there without her knowing it. She and she alone is in possession of the missing man’s watch chain and charm, cuff buttons, and money. She offers no testimony to explain these matters, and the human mind would be driven irresistibly by these facts and circumstances to the conclusion that Edward Wilganowski was dead, and that he came to his death at the hands of appellant. The testimony excludes every other reasonable hypothesis.

But it is not necessary to prove all elements of the corpus delicti independent of the confession. The confession may be considered along with other facts and circumstances in evidence, and if the evidence, independent of the confession, tends to corroborate the confession, and convinces the jury that the confession is a true statement of how the homicide occurred, is corroborated by independent evidence in material particulars, the evidence is sufficient to sustain a verdict that the accused is guilty of the crime charged. This question was ably and learnedly discussed by Judge Hurt in the case of Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989, in which the authorities are reviewed, and the rule established in this state that it is not essential to establish the corpus delicti by testimony independent of the confession, but that the confession may be considered in connection with the other facts and circumstances in evidence, and, if the circumstances related correspond in some points with those proven to have existed, this may be evidence sufficient to support a finding of the jury. Full proof of the body of the.crime, independent of the confession, is not required and in many cases slight corroborating facts have been held to be sufficient. Such supplemental evidence need not be conclusive in its character. Judge Hurt further adds:

“Now, with reference to the corpus delicti, and recurring to the summary of the facts heretofore stated, we would observe that the rule of law is well settled that, before a conviction can bo maintained in any criminal case, the corpus delicti must be established. In a case of culpable homicide,. Mr. Wharton says: ‘It is essential for a conviction for any degree of culpable homicide: First, the deceased should be shown to have been killed; and, second, this killing should have been proved to have been criminally caused. Unless the corpus delicti in both these respects is proved, a confession is not, by itself, enough to sustain a conviction.’ Whart. I-Iom. § 641. See, also, Hunter v. State, 34 Tex. Cr. R. 599, 31 S. W. 674, and authorities there cited. We would further observe, in this connection, that, before a person can be convicted of felonious homicide, the death of the deceased must be shown to have been caused by the act or agency of such party; and in this state it is enacted by statute that ‘no person shall be convicted of any grade of homicide, unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.’ See Penal Code 1895, art. 654. Now, it will be noted that, while the statute requires that the body of the deceased, or portions thereof which are found, must be sufficiently identified to establish the fact of the death of the person alleged to have been killed, yet there is no attempt to indicate the character of testimony by which the identity of the person is to be established. The statute says that the remains must be sufficiently identified; that is, we take it, the statute requires that the proof be of a legal character. Nowhere is it said that the testimony must be positive. If it be circumstantial, that is all that is necessary, if it sufficiently identifies the remains or the portions thereof found as those of the deceased. See Taylor v. State, 35 Tex. 97; Wilson v. State, 41 Tex. 320; Id., 43 Tex. 472; Brown v. State, 1 Tex. App. 154: Jackson v. State, 29 Tex. App. 458, 16 S. W. 247; State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312; McCulloch v. State, 48 Ind. 109; State v. Williams, 52 N. C. 466, reported in 78 Am. Dec. 248, and note 2, at page 253; Campbell v. People, 159 Ill. 9, 42 N. E. 123, 50 Am. St. Rep. 134; State v. Martin, 47 S. C. 67, 25 S. E. 113; Webster v. Com., 5 Cush. (Mass.) 386; 1 Bish. Crim. Proc. § 1057 et seq.
“The above cases not only show that the body or portions thereof may be identified as that of the deceased by circumstantial evidence, but the corpus delicti itself may also be proved by this character of testimony.”

In addition to the facts above detailed, proven in addition to the confession, the state introduced the written confession of appellant, which states:

“I, Katy Wilganosky, being under arrest and' charged with the offense of murder, and being warned and cautioned by Tom Bartlett, county attorney, that I do not have to make any statement or confession at all in reference to said charge and accusation against me, and that any statement which I might make in reference to said charge against me may be used in evidence against me on my trial for the. offense concerning which my statement and confession is herein made, do freely and voluntarily and without compulsion or persuasion make to the said Tom Bartlett the following statement and confession: I came to Marlin about six months prior to the time I married Ed Wilganosky. I married him about sixteen months prior to the killing hereinafter related. About the first of February, 1915, my husband and I began to have trouble about his refusing to furnish me with sufficient clothing and food and his refusing to permit my children, by my first husband, to visit me. I told him that I was not satisfied with the way he was treating me, and asked him to pay mo for the time that I had worked for him during the past sixteen months. I told him that, if he-would pay me for my work, I would leave him. He said he was going to give me shit. We continued to quarrel for the next two weeks. On or about the 16th day of February, about 6 o’clock in the evening, X found him asleep, sitting in a chair by the kitchen fire. I got a piece of stove wood, which had been used for a maul in splitting wood. It was very hard and heavy and ■was trimmed at one end so as to form a handle. I found it in the yard. I came up behind him with the stick in my hand. His head was inclined to one side leaning on the chair. I hit him as hard as I could, in the temple, with the stick, and he dropped over on the floor dead. I put some water on him in an effort to bring’ him to life. He did not show any signs of life, and I left him there on the floor until it was dark. That night I drug him out of the house into the yard and covered him up with hay. I got this hay out of the stable. I left him there all that night. The next morning about 7 o’clock I got some dry hay from the stable, and built a fire over him. I poured kerosene oil over his body and over the hay and put a match to it. I added kerosene, hay and dry planks to the fire during the day. I also kept the fire up the next night and the next day. After I had burned him up, as nearly as I could, I took what remained of the bones and the ashes and poured them in some post holes where an old fence had been removed on a lot just across the alley from my house. I then told the people that he had gone to Ft. Worth. I killed him because I was mad at him and because he would not give me any money. I was so mad at him when I hit him I did not care whether I killed him or not.
“After I killed him I found $600 belonging to him in the seedhouse when I was feeding the cow. I knew he had this money before I killed him, and that it was about the place somewhere, but X did not know where it was. I took the $600 and put it with a hundred and sixty dollars which I had in my trunk, and sewed the whole amount up in a pincushion, and pnt it in between some old clothes in a basket. 1 burned his watch and hat after I had burned his body. I knew that, if the people saw his hat and watch there, they would know that he was not in Ft. Worth. I did not burn- the chain on the watch because it had a cross for a charm and I did not wish to burn the cross. I am a Catholic.”

It will he noticed that the main material facts in this confession are corroborated by testimony adduced on the trial, and in the case of Lott v. State, 60 Tex. Cr. R. 162, 131 S. W. 553, the corroborating testimony is not near so full and complete as in this case, and yet the verdict was sustained by this court in an opinion by Judge McCord, in which all members of the court concurred. Many other cases could be cited in the decisions of this court, but the holding of this court is sufficiently shown in the Kugadt Case, supra, and Lott Case, supra, and the opinions in the Gay and Follis Cases cited by appellant are in no wise in conflict with the rules of law as announced in the Kugadt and Lott Cases. Not only is this the rule in this state, but our Assistant Attorney General has compiled an exhaustive list of authorities from other jurisdictions in which it is demonstrated that the evidence in this case is ample to sustain the corpus delicti. See Michie on Homicide, vol. 2, pp. 1118-1121, in which it is stated that “the finding of fragments of a human body, such as tufts of hair, which are positively identified as part of the body of the supposed victim, or of metallic articles, which are similarly identified as articles worn by him,” is sufficient identification of the remains. State v. Williams, 46 Or. 287, 80 Pac. 655; State v. Henderson, 186 Mo. 473, 85 S. W. 576; People v. Palmer, 109 N. Y. 110, 16 N. E. 529, 4 Am. St. Rep. 423; State v. Patterson, 73 Mo. 712; Best on Evidence, § 446; State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Williams, 171 Mass. 461, 50 N. E. 1035; State v. Novak, 109 Iowa, 717, 79 N. W. 465; and authorities cited in these opinions. Under our statute, the body or some portions thereof must be found, but when a body or a portion thereof is found it may be shown to be that of the alleged deceased by circumstantial evidence is now recognized by all the authorities, and under this rule of law the confession and the corroborating circumstances show that thie bones found in tbe well and in the post hole were portions of the body of Edward Wil-ganowski, and the evidence, independent of the confession, would show that he came to his death by violent means at the bands of appellant, and when there is a confession, as in this case, we think, it establishes all the elements of the corpus delicti beyond question.

The court, at the request of appellant, instructed the jury:

“The law of Texas provides that no person shall be convicted of any grade of homicide unless the body of the deceased or portions of it are .found and sufficiently identified to establish the fact that the death of the person charged to have been killed. The identification may be made by circumstantial evidence, but it must be beyond a reasonable doubt.”

Appellant insists that the court in this case should have also instructed the jury as requested by him:

“And the jury cannot consider the disappearance of the person charged to have been killed as evidence that the remains found, if any, were his.”

On this proposition he refers to the case of Gay v. State, hereinbefore cited, but that case does not sustain the proposition that such limitation should be placed upon tbe proof of disappearance. It is true that proof of disappearance alone is insufficient to establish the death, but it is a circumstance to be considered along with the other facts and circumstances in evidence in passing on that issue, and such a charge would not only be upon tbe weight to be given tbe testimony, but would exclude testimony legitimately before the jury to be given such consideration as they thought it entitled to in connection with the other facts and circumstances.

The written confession is hereinbefore copied in full. When appellant objected to its introduction, tbe court excluded the jury and heard evidence as to whether or not it was voluntarily made. Only one witness was called, County Attorney Bartlett. He testified positively that the warning required by law was given and tbe confession freely and voluntarily made. No other evidence was offered. Therefore the court did not err in admitting it. Appellant insists, if the court did not err in admitting it, tb.en the court should have given his specially requested charge that, if it was not freely and voluntarily made, the jury should not consider it. Where there is evidence raising this issue, such a charge should be given. But is there any evidence raising the issue in this case? It is true that the oral confession made to Mr. Plott, by which the burned bones, watch, and purse clasp were found, was obtained by statements made to her by the sheriff that he (the sheriff) was her friend, and he would render her any assistance he could, and if the bones, watch, etc., had not been found at the places pointed out by appellant, such oral confession would not have been admissible. Appellant insists that, this condition having been shown to exist at the time the oral confession was made, the law would presume that the condition continued until the next day when the written confession was made to the county attorney, Mr. Bartlett. The law might, and doubtless would, so presume if there was no testimony offered on that issue. But the testimony of Mr. Bartlett rebuts such presumption, and appellant offered no testimony raising such an issue after Mr. Bartlett, by his testimony, had excluded the idea that such condition existed at the time he took the written confession. Such presumption only arises when the state’s testimony has not excluded the idea. The cases cited by appellant hold:

“It is well settled as a presumption of law that the influence of threats or promises once made continue to operate until rebutted by proof clearly showing it had ceased to operate.”

This rule of law is not questioned, and but for the testimony of Mr. Bartlett the charge should have been given; but after his testimony no such presumption was in the case.

The court instructed the jury:

“You are further charged that before a conviction can be had in this case the state is required to prove two things: First, the death of Edward Wilganowski by some criminal agency; and, second, that his death was caused by the defendant Kate Wilganowski, and none other, in the manner charged in the indictment. And unless you believe from the evidence beyond a reasonable doubt that the said Edward Wil-ganowski is dead, and that his death was caused by some criminal agency, and that the defendant Kate Wilganowski and none other killed him as charged in the indictment, you will acquit her, and these questions it is your exclusive province to determine from all the facts and circumstances which are in evidence before you. And in this connection you are instructed that you cannot convict the defendant on her confession alone, and unless you believe from the evidence beyond a reasonable doubt that there are such extrinsic corroborating facts and circumstances in evidence as will, taken in connection with said confession, if any, produce conviction in your minds of the defendant’s guilt, you will acguit her.”

Having thus instructed the jury, it was not necessary to give the special charge requested on this issue. It is true a confession made out of court will not alone support a conviction, as contended by appellant, and the court so instructed the jury in the charge. The corroborating evidence, we tbink, fully sufficient to support the verdict.

The court permitted state’s counsel to ask the county attorney “if appellant voluntarily made and signed the written confession introduced in evidence.” This was objected to on the ground that the answer would be but a conclusion of the witness. Appellant cites no authorities as sustaining such contention, and for a person to state whether or not an act was a voluntary one we do not think is a conclusion, but a statement of a fact.

The next contention is that the court erred in admitting in evidence the pieces of bone found, alleged to be a portion of the skull, patella or knee cap, ankle bone, and other pieces of bone, on the ground that it had not been proven they were human bones, and, if that fact had been proven, it had not been proven they were the bones of Edward Wilganowski. One of the issues being tried was whether or not they were the bones of Wilganowski, and under the evidence the jury found they were. And we think the testimony of the doctors, introduced as witnesses, clearly demonstrated they were human bones. The confession of appellant would also show they were human bones, and the bones of Edward Wilganowski.

One of the defenses was that if appellant killed deceased she was insane when she did it. The court in Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330, held that it was admissible to,prove by the jailer the acts and conduct of one on trial while in jail; on this issue, therefore, the court did not err in admitting the testimony of Mr. and Mrs. Reese. Nor did the court err in permitting Mr. Reese to testify on this issue, although he had not been placed under the rule. He was jailer, and had charge of appellant, and, being an officer of the court, the. court could not be required to place him under the rule when he would be called to testify only on the issue of insanity based on conduct of appellant while in jail.

Appellant in her confession stated the instrument with which she struck the blow was a maul used in splitting wood. State’s counsel described such an instrument as appellant in her confession said she used, and asked Dr. Strife if such an instrument in the hands of a person the size of appellant would be deadly when used to strike a person on the temple while asleep. The witness answered that such an instrument would likely cause death under such circumstances. This was an issue in the case, and was by the court submitted to the jury, and there was no error in admitting the testimony in this case. Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989.

The appellant contends that the court erred in admitting in evidence the trunk found in the possession of appellant’s son at Bryan. As the suit appellant said deceased had worn on the trip she said he had made ,to Ft. Worth was found in this trunk, there was no error in admitting the trunk.

The teeth, buttons, and all the articles found where appellant pointed out to the sheriff as the place she burned the body of deceased were properly admitted in evidence. This evidence would all tend to corroborate her confession.

By another bill it is made to appear that the county attorney in his argument to the jury said, referring to the testimony of Sheriff Plott, that he had promised to befriend the woman, “Didn’t Plott take her to Waco to save her from the wrath-—” when he was stopped by objection of appellant’s counsel, which objection was sustained by the court, and the jury instructed not to consider such remarks. As the objection was promptly sustained, and the county attorney not permitted to complete the sentence, the jury also being, instructed not to consider such remarks, the bill presents no error.

The court refused to permit Peter Bayer to testify that, before the marriage of appellant and deceased, he had advised deceased not to marry appellant, and since that time deceased had' told him he wished he had taken his (Bayer’s) advice. This would have tended to throw no light on this transaction, and the court did not err in his ruling.

The appellant introduced evidence tending to show that appellant was insane, and called witnesses to show her condition a number of years prior to this homicide. To rebut this testimony, among other witnesses, the state called W. T. Goode, who testified that he had met appellant and deceased; that he was writing insurance, and in talking with deceased appellant interpreted deceased’s remarks to him and his remarks to deceased; that at this time he noticed nothing unusual about her. He was not asked, nor permitted to give, his opinion as to whether she was sane or insane, but only permitted to detail the transaction, and that he noticed nothing unusual about her. The acts and conduct of one is permitted to be given in evidence on this issue to aid the jury in determining the issue of insanity. Had the court permitted the witness to express an opinion as to appellant’s sanity or insanity, appellant’s objection would perhaps have been well taken, as Mr. Goode’s acquaintance was too limited to express an opinion.

Bill No. 35 reads as follows;

“Be it remembered that on the trial of the above-entitled cause, the defendant introduced as a witness Dr. A. L. Munrick, who testified that he had been practicing medicine in Bryan, Texas, for 17 years; that he attended medical college three years, graduated at Ft. Worth; took a post-graduate course in Chicago in 1913, one in New York in 1906, one in New Orleans in 1907; that he was at the Manhattan, New York City, Polytechnic in New Orleans; that he took a double course in Chicago and New Orleans ; that he knew Lena Paraduski and had known her for 17 years; that she lost her mind during the present year and died insane within a short time; she had always been very quiet in her ways and never had much to say; that he knew Mary Wozniak and family and had done their practice for 14 years; that the daughter of Mary Wozniak is subject to epileptic spells, did not seem to be exactly mentally unbalanced; that he was not an expert on epilepsy, and therefore could not exactly tell where the seat of that disease is; it affects different parts of the brain, generally in the base of the brain I suppose; it is a mental disease; that the best authorities claim that mental weakness or insanity is hereditary to a great extent; that that weakness runs in certain families. Then counsel for the state asked the witness this question: ‘If the father is insane, the whole family is insane?’ Witness answered, ‘Not necessarily.’ Counsel for State: ‘Do you pretend to know all about that?’ Witness : ‘That is what the authorities say. I am just stating them.’ Counsel for State: T think the authorities would be best evidence.’ The Court: T think when the witness comes on the stand and says that he is not an expert he can’t testify as an expert on ¿nything.’ Counsel for Defendant: ‘If he shows that he has been instructed about this, that is, according to what certain authorities state about a certain thing —’ The Court: ‘If he has gone and got some boobs and read it, he can go and get them.’ Counsel for Defendant: T think his declaration along that line is competent.’ The Court: ‘All those books are written in English.’ Counsel for Defendant: ‘Note our exception.’ The effect of the.ruling made by the court as shown was to exclude and nullify the previous testimony on direct examination to the effect that the best authorities regarded insanity or mental weakness as a hereditary disease, which defendant contends was competent testimony coming from a witness of the profession and general medical instruction and practice as the testimony showed Dr. Munrick to be. The testimony of other witnesses showed that the Lena Paraduski referred to by Dr. Munrick was a half-sister of the defendant, and that the Mary Wozniak whose daughter was stated to be an epileptic is a half-sister of defendant; that a half-brother named Jacob Goretski had died in an asylum of this state about 20 years ago after being there two years. Defendant’s witnesses Fountain and Barron testified that in their opinion the defendant was weak-minded or half-witted, and under some circumstances would not know the difference between right and wrong and could not control herself. There being evidence of insanity in defendant’s family, the ruling of the court in the connection shown by this bill was harmful to defendant’s defense of mental irresponsibility.”

This is all of the hill, and we fail to see how the remarks of the court could have been hurtful to appellant, as the witness had testified:

“I am not an expert in the disease of epilepsy, and therefore I could not tell you where the seat of the disease is. I don’t pretend to be an expert on insanity. I don’t pretend to be an expert on hereditary diseases. This is a very intricate study and hard to find out about. All I can go by is just the authorities we had.”

After the witness himself had so testified, the remarks said to have been made by the court could have had no more tendency to weaken the testimony of the witness than his own testimony had.

Under the indeterminate sentence law the sentence will be so reformed as to read that appellant be confined in the penitentiary for her natural life or for not less than five years, and the proper entry will he made in the judgment herein entered, and he certified to the trial court for observance.

An affidavit of John Parsons was attached to the motion for a new trial in which Mr. Parsons swore that about three weeks before the trial he heard B. P. Walker (who served as a juror in this cause) say “They had better not take him on the jury, because if they did he would hang the old bitch.” He said Walker MeDade was also present when Walker made the remark. On the hearing of the motion for a new trial appellant offered this affidavit in evidence, but the court excluded it. Our procedure provides that the court may hear evidence by affidavit or otherwise, and the state was insisting that Parsons be called that he might be cross-examined. When the court excluded the affidavit, appellant did not ask process for Parsons, although it is shown he lived but three miles from the courthouse. Appellant, to have shown proper diligence, when the court excluded the affidavit, should have asked for process for Mr. Parsons, and that the hearing be adjourned until his attendance could be secured. This he did not do; but, if this was all the record disclosed, we would feel that perhaps appellant had not had a trial by a fair and impartial jury; but, when appellant offered the affidavit, the state called B. P. Walker, and he testified that he had never made any such remarks to Mr. Parsons, nor any one else, that he'had never expressed an opinion of any character, and had none when accepted on the jury. Walker MeDade, whom the Parsons’ affidavit said was present when he says the remark was made by Walker, was also called as a witness by the state, and he testified that Walker made no such remark. Under such circumstances, we would not feel authorized to hold that the court erred in refusing to grant a new trial on this ground of the motion.

The only other ground presented in appellant’s brief is that the jury discussed the failure of defendant to testify. All the jurors (except two who were not present on the hearing of the motion) testify that, before any mention was made by any one of the failure of appellant to testify, the jury had all voted, agreeing that she was guilty, and that eleven of them had voted for life imprisonment, and one, B. P. Walker, had voted for the death penalty. Seven of these ten jurors swear that at no time was the failure of defendant to testify mentioned or discussed in their presence. The other three, Messrs. Walker, J. E. Conner, and J. A. White, say that the jury had agreed on the guilt of appellant, and eleven had voted for life imprisonment, and one for the death penalty, when the following occurred; Mr. Conner says: That, while he and Mr. Walker were in the toilet, Mr. Walker remarked, “I wonder why it was that they did not put Mrs. Wilganowski on the stand.” That he replied, “I do not know.” That this was all that was said, and that there was no discussion of the matter. Mr. White testified: That he heard Mr. Walker make the remark, “he wondered why the defense did not put Mrs. Wilganowski on the stand.” That he heard no reply to such remark, and there was no discussion of the matter. Mr. Walker had made an unsworn statement to appellant’s counsel that the failure of the defendant to testify had been discussed in the jury room before the punishment was agreed on, but when placed on the stand he testified there was no discussion of the matter, but only a remark similar to that testified to by Messrs. Conner and White. This shows a mere incidental reference to the matter by the only man on the jury who had voted for the death penalty, and who later agreed with the others on life imprisonment in the penitentiary as 'the punishment. Of course, if as stated by Mr. Walker to appellant’s counsel, in the unsworn statement, the failure of defendant to testify had been discussed, we would not inquire whether or not injury was shown. But Mr. Walker, when sworn, changes his statement and admits there was no discussion of appellant’s failure to testify. Two of the jurors say that Mr. Walker made an inquiry why they had not placed appellant on the stand, but no one vouchsafed him any information in answer to the question, and that the matter was not discussed. The other jurors say they did not hear the question propounded by Mr. Walker, and the matter was not mentioned nor referred to in their presence. We cannot say Mr. Walker’s unsworn statement to appellant’s counsel should be accepted, instead of the testimony of all the other jurors. We think the court was fully justified in finding as a fact there was no discussion of appellant’s failure to testify, but only an incidental reference made to the matter by Mr. Walker propounding a question in the presence of two jurors, which elicited no information or discussion, and it has always been held by this court] that a mere incidental reference to the failure of the defendant to testify does not present reversible error. Cooper v. State, 162 S. W. 360, and authorities cited; Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357.

There are other bills of exception in the record, but they are not presented in the exhaustive brief of appellant, and we do not consider it necessary to discuss them. However, we will state we have read each of them and do not think any of them present any error for which the cause should be reversed.

The judgment is reformed and affirmed.
      <gu=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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text:
    HEITMAN v. STATE.
    (No. 3779.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Rape <$=>19 — “Principal”—-Liability.
    Where a mother compelled her daughter, ■who was under the age of consent, to submit to intercourse with accused, she is guilty as a principal of rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 22; Dec. Dig. <$=>19.
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal Law <$=>377 — Evidence—Character op Accused.
    Where the state contended that the mother of prosecutrix compelled her to submit to intercourse with accused, and there was testimony showing the mother’s incontinence, evidence of her good reputation is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836, 837, 840; Dec. Dig. <$=> 377.]
    3. Criminal Law <$=>419, 420 — Evidence — Age.
    The age of the prosecutrix in a statutory rape case cannot be shown by the school record, though her mother may testify thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <$=>419, 420.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Charles Heitman was convicted of rape, and he appeals.
    Reversed and remanded.
    William H. Allen, of Dallas, for appellant. M. T. Lively, Co. Atty., of Dallas, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape on a girl alleged to be under 15 years of age, and given life imprisonment in the penitentiary. The facts as to the guilt of the defendant are in direct conflict. It is also shown defendant is 72 years of age. The evidence is contradictory as to the age of the girl; the state contending that she was about 14, and appellant contending she was older. That is a controverted issue. It is also the contention of appellant that he had reached that age of life when he was physically unable to have sexual intercourse, much less rape a young girl. The jury seemed to be under the impression from their verdict that nature had dealt very kindly with the defendant in this respect.

The girl testified to the act of intercourse, and she states that her mother was present and forced her to comply with the' old man’s wishes, threatening to whip her if she did not. There is evidence also in the record, to which a bill of exceptions was taken, to the effect that appellant narrated to the witness some obscene language and things which he, appellant, said occurred.between himself and the mother of prosecutrix which finally resulted in his having intercourse with her; all of this connecting the mother with the defendant in both respects. These matters were denied by the mother. To meet this phase of the ease, appellant offered testimony of various witnesses, who are of prominence, to show the mother’s good reputation and standing for virtue and chastity, as well as that she was a hard-working, law-abiding woman. This was excluded on the objection by the state. The court seems, by his qualification of the bill, to have entertained the idea that these matters did not question her standing for chastity and veracity as an issue. It is' unnecessary to discuss that matter at any length. If the mother was present and forced her daughter to have intercourse with appellant, under all the authorities she would be guilty of rape as a principal. How any woman could be so debased as to force her own daughter to have intercourse with this old man, or any other man, and then have it said that her reputation for chastity or her standing for virtue was unassailed, cannot be correct. If she h,ad intercourse with defendant, as witness testified defendant said she did, the obscene language and things of that sort that led up to that intercourse between them would certainly show that she could not be a woman of virtue or chastity. This would be more than emphasized if she forced her daughter to have intercourse with defendant. The testimony of her good reputation in the respect mentioned certainly was legitimate. It ought not to be questioned, that if these facts are true a witness coming before a jury in the condition this mother did, in regard to her child, and in connection with this man, who in this case is charged with having committed rape, and whom the girl said had intercourse with her, is held up to scorn and debasement is a profligate of the lowest order. It would be inconceivable how any woman would, under a threat of chastisement, force her daughter to have intercourse with a man, or submit her person to his embraces. The human imagination could hardly fathom such depth of degradation. No right-minded jury would ever entertain for a moment, under such facts if true, but that the mother belonged to the lowest order of fallen womanhood. Not only that, but if the girl’s testimony is true, her mother was as guilty of that rape, as a principal to the transaction, as was the defendant in the case. It is deemed unnecessary to cite authorities, but will refer to Holland v. State, 60 Tex. Cr. R. 117, 131 S. W. 563; Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 1912C, 126; Warren v. State, 54 Tex. Cr. R. 443, 114 S. W. 380; Jacobs v. State, 146 S. W. 558; Lincecum v. State, 29 Tex. App. 328, 15 S. W. 818, 25 Am. St. Rep. 727.

The prosecuting witness testified she was 14 years ‘old May 5, 1915, and gave as a reason for it that it was shown by the school record. The age of the prosecutrix cannot be shown this way. Simpson v. State, 46 Tex. Cr. R. 551, 81 S. W. 320. The court qualified this hill by stating the mother of the girl was put on the stand and swore to the same date of birth and age of the pros-ecutrix. He further states that the fact of her age was not really a contested issue. The mother’s testimony as to the age of her -daughter was legitimate and proper. Perhaps no woman could testify more advisedly about the age of her child than the mother. Upon another trial the testimony in reference to the school record will not be permitted to go to the jury.

There was a matter that occurred during the trial, set out at length, being a colloquy between counsel and the court. This is not noticed because it will not or ought not to occur upon another trial, nor is it deemed necessary to notice the argument of the assistant county attorney. This will be avoided upon another trial. The argument of the prosecuting officer, if not a direct reference to the defendant’s failure to testify, it approaches it in dangerous proximity.

The judgment is reversed and the cause remanded.
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