text:
    MISTROT v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Licenses (§ 42) — Transient Merchants— Sufficiency of Information.
    Under Rev. Civ. St. 1911, art. 7355, § 1, providing that every transient merchant offering for sale bankrupt stocks of goods, etc., shall pay a, license of $100 per month for the first month or less, and for each additional month an additional sum of $20, but that, where he remains for six months, in addition to the $100 for the first month, he shall pay $10 per month, and that, where he remains twelve months, he shall pay the license levied upon the ordinary retail merchant, an information not alleging how long defendant had been located in the county was not specific enough to show what tax, if any, was due; and, where it charged in one place that Mistrot Bros, and - Mistrot engaged in the business, and in another that C. L. Mistrot, one of the firm, engaged in such business, it was so vague that it could not be determined whether Mistrot Bros, or C. L. Mistrot was liable for the tax.
    [Ed. Note. — Eor other cases, see Licenses, Cent. Dig. §§ 88-95; Dec. Dig. § 42.]
    2. Indictment and Information (§ 81)— Requisites — Name of Defendant.
    Under the express provision of Code Or. Proc. 1895, art. 257, subd. 1, the defendant’s name, if unknown, should be so stated and, if not known, some reasonable definite description of him should be given.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 216-224; Dec. Dig. § 81.]
    Appeal from Baylor County Court; T. J. North, Judge.
    C. L. Mistrot was convicted for failure to pay the license tax upon offering bankrupt stocks, and advertising fire sales, and he appeals.
    Reversed, and prosecution ordered dismissed.
    ' Gregory, Batts & Brooks, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted for failure to pay the tax levied and .authorized to be levied under section 1 of article 7355 of the Revised Civil Statutes. Said section reads as follows: “From every merchant who may remove from place to place and offer for sale ‘bankrupt stocks’ of goods, or advertising ‘fire sales,’ or ‘water and fire damaged stocks for sale,’ for a limited period of time, there shall be collected one hundred dollars per month for the first month, or less than a month, for each and every place where such business is located; and for each additional month that such sales are continued, at any given place, said merchant shall pay an additional sum of twenty dollars; provided, that where they remain for six months in one place, in addition to the one hundred dollars charged for the first month, they shall pay an additional sum of ten dollars per month; and provided, further, that, if they remain in one place for the period of twelve months, they shall be required to pay, in addition to the one hundred dollars for the first month, the sum fixed in the preceding paragraph, according to class and amount of goods sold in one year.”

The complaint and information is attacked on several grounds. One ground is that information does not charge the offense in specific enough terms to show what tax, if any, is due under this law, in that it does not allege how long he had been located in Baylor county. It will be noted that for the first month a merchant of that class is required to pay $100 per month, and for each additional month he shall continue in that business $20 per month, provided that, if he remains for six months or longer in one place, he shall only be required to pay $10 for each month after the first month. It is thus seen, for the five months folio wing the first month, whether he shall be required to pay $20 per month or only $10 per month is made contingent on whether or not he shall remain in business in the same place for six months or longer; and, if they remain in one place twelve months or longer, then, in addition to the $100 paid for the first month, they shall be required to pay for the additional time only such sum as theretofore levied on merchants of the same class. Thus it is seen that, while $100 is the fixed amount to be paid for the first month, the amount to be paid for any subsequent month can only be determined by the lapse of time. If he remains less than six months, the amount is $20; if he remains longer than six months, but no more than twelve months, the tax is $10 per month, while, if he remains longer than twelve months, then the tax after the first month is the same as that levied upon the ordinary retail merchant, and, which tax having been repealed, we suppose a proper construction of this statute would be that, if appellant should remain longer than twelve months, he would owe no tax after the first month. It was certainly the intent and purpose to tax such person the same as other merchants after the first month, if they remained in business twelve months or longer in one place, and as it would be necessary to prove that he had not remained in the place twelve months, or did not intend to do so, some allegation in the indictment ought to have charged the time appellant had been engaged in the character of business taxed by the statute in that place, so that it could be determined what amount, if any amount, was due under the law.

Again, the information charges in one place that Mistrot Bros, and- Mistrot engaged in the business, and in another charges that G. L. Mistrot, one of the firm, did engage in the business. From the allegations, one could not determine whether O. L. Mis-trot was liable for the tax, or Mistrot Bros, was liable for the tax. And in alleging that the firm was composed of O. L. Mistrot and -Mistrot there is no allegation why the name of-Mistrot is not given. If it was unknown, it should have so been stated. Article 257, subd. 1, Code Or. Proc. 1895, provides that the name of the accused, if known, must be stated, and, if not known, some reasonably definite description of him given. In the case of Mrs. Beaumont v. City of Dallas, 34 Tex. Cr. R. 68, 29 S. W. 157, it was held that to name the accused as Mrs. Beaumont was insufficient. See, also, article 938 of the Procedure.

The complaint and information in this ease being so vague and indefinite, it will be necessary to reverse and dismiss the case; therefore we do not deem it necessary to discuss the other questions raised.

The judgment is reversed, and prosecution ordered dismissed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Criminal Law (§ 1083) — Statements os' Fact and Bills of Exception — Time por Filing.
    In a misdemeanor case, where the court by yerbal order extended the time within which to file a statement of facts and bills of exception, such order could not be entered nunc pro tunc after an appeal had been perfected.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.]
    2. Criminal Law (§§ 1092, 1099) — Statements op Fact and Bills of Exception-Time por Filing.
    Where, in a misdemeanor case, the only authority to file a statement of facts and bills of exception after term time was a verbal order of the judge, a statement and bills filed within the time as so extended could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2806-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    3. Disorderly House (§ 16) — Evidence-Admissibility.
    On a trial for keeping a disorderly house, evidence that a woman, who frequently visited such house, and who would be followed shortly by a man, bore the reputation of being a woman who made dates with men and met them at assignation houses, was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    4. Criminal Law (§ 1090) — Appeal—Reservation op Grounds op Review — Necessity op Exceptions.
    The admissibility of testimony could not be considered on appeal where no bill of exception was reserved to its admission.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 884) — 'Verdict—Correction.
    Where the jury in a misdemeanor case returned a verdict finding accused guilty and recommending a suspension of sentence, without assessing the punishment, the court properly refused to receive the verdict, and directed the jury to assess the punishment; as a suspension of sentence in a misdemeanor case is not authorized by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. ¡h 884.]
    6. Disorderly House (§ 19) — Question por Jury.
    On a trial for keeping a disorderly house, where the evidence of the witnesses for the state, if believed, justified a verdict of guilty, though the testimony for accused would support a different finding, this contested, issue of fact was properly submitted to the jury.
    [Ed. Note. — For other cases, see- Disorderly House, Cent. Dig. § 30; Dec. Dig. § 19.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Emma Smith was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For otter oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly house, a house where men and women met by mutual appointment for the purpose of sexual intercourse.

The term of court at which appellant was tried adjourned July 5, 1913. No order was entered of record authorizing a statement of facts and the bills of exception to be filed after term time. This being a misdemeanor conviction, the Assistant Attorney General has filed a motion to strike out the statement of facts and bills of exception. At the request of appellant’s counsel, time was given him to perfect the record if same could be done. Since that time papers have been filed wherein the county judge states he remembers that he gave a verbal assent to an extension of time, but that no order was ever entered on the docket of the court, nor in the minutes of the court. Why, in criminal cases, as well as in civil eases, counsel will not prepare and see that the orders and judgments are properly entered in the minutes in their cases, we fail to understand. This verbal order, if made prior to the adjournment of the court for the term, is not a part of the record in this ease. In the case of Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566, and s. c., 61 Tex. Cr. R. 340, 135 S. W. 568, the power of the court to enter nunc pro tunc orders after an appeal has been perfected was discussed, and the decisions of the court all hold that trial courts cannot do so, and, if the order does not appear of record, we cannot consider these matters. As stated in that opinion, if the question was an open one, the writer would individually be inclined to a different view; but, in rules of procedure where there has been a settled construction of our statutes, we have followed the established rule, and, under the 'showing made in this case, the motion of the Assistant Attorney General must be sustained. However, were we to hold otherwise, the record as made would present no error.

The only bill of exception in the record, while rather incomplete, yet if we take it in connection with the statement of facts, would present this question: A witness testified that Ollie Link was a frequqnt visitor at appellant’s home; that they had seen her come on one street car and enter this house; that on the next car a man would come and enter the house, and after they had remained there awhile they both would leave; that Ollie Link bore the reputation of being a woman “who makes dates with men and meets them at assignation houses.” In Branch’s Orim. Law the following is said to be the rule: “House may be proven to be disorderly by the general reputation of the character of the women residing at or frequenting the house,” citing Sylvester v. State, 42 Tex. 496; Ramey v. State, 39 Tex. Cr. R. 200, 45 S. W. 489; Owens v. State, 53 Tex. Cr. R. 1, 108 S. W. 379; Morris v. State, 38 Tex. 603; Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Wimberly v. State, 53 Tex. Cr. R. 12, 110 S. W. 904. Again: “General reputation of bouse and inmates may be proven.” Forbes v. State, 35 Tex. Cr. R. 26, 29 S. W. 784. “Witness may testify as to general reputation of inmates of the house, though he does not know them.” Downs v. State, 23 S. W. 684. Thus it is seen under all our decisions the court committed no error in admitting this testimony.

The other complaints in the motion as to • admissibility of testimony cannot be considered, for if it was objected to no bill of exception was reserved to the action of the court in admitting it.

In the motion for new trial we find the following statement: That the jury first returned the following verdict: “We, the jury, find the defendant guilty as charged and recommend a suspension of jail sentence.” That the court refused to accept the verdict, and instructed them to retire and return a verdict according to his instructions, which they did, and returned a verdict finding appellant guilty, and assessing her punishment at a fine of $200 and 20 days’ confinement in the county jail. If such a proceeding took place, it is not presented in a way we can review the matter, being verified by no bill of exception, and the only place it is mentioned being a recitation in an un-sworn motion for a new trial. But if properly presented for review, the court acted properly in the premises. There is no law authorizing a suspension of sentence in a misdemeanor case, and the court should not have received the verdict first returned, but should, as he did, require the jury to pass on her guilt or innocence, and, if they found her guilty, assess the punishment.

The other grounds in the motion allege that the evidence is insufficient to sustain the conviction. The evidence of Messrs. Ferguson, Tart, Schlanger, Key, and others, if believed by the jury, sustains the verdict, and, while the testimony offered in behalf of appellant would support a different finding, yet this contested issue of fact was properly submitted by the court to the jury, and they find against her.

The judgment is affirmed.


author: HARPER, ' J.

text:
    STONER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1.Criminal Law (§ 1150) — 'Venue—Change oír — Abuse of Discretion.
    The action of the trial court in denying a change of venue will not be disturbed, unless an abuse of discretion appears.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3044; Dec. Dig. § 1150.]
    2. Criminal Law (§ 597) — Continuance-Absent Witness.
    In a prosecution for assault with intent to murder, where a continuance was requested on the ground of the absence of a material witness, the denial of the continuance will not be held prejudicial, where it appeared from the evidence adduced at trial that the absent witness probably could not have testified as stated in the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 597.]
    3. Jury (§ 72) — Summonins and Custody.
    In a prosecution for aggravated assault, where the accused was a deputy sheriff and the sheriff was also implicated, the court properly directed the constable of the precinct to summon the talesmen, and delivered the jury into the custody of the deputy constable.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 333-347; Dec. Dig. § 72.]
    4. Criminal Law (§ 1092) — Appeai>-Bills of Exception.
    Bills of exception to the charge of the court not filed until after adjournment present .no question for review, not being presented to or approved by the trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    5. Criminal Law (§ 1172) — Assault with Intent to Murder — Instruction.
    In a prosecution for assault with intent to murder, where it was accused’s contention that the prosecuting witness and his friends were in a saloon using obscene language, and that on their using such language after leaving the saloon accused, a deputy sheriff, attempted to arrest the prosecuting witness and upon resistance used necessary force to save himself, an instruction, telling the jury that accused had the right to arrest the prosecuting witness without warrant if a breach of the peace occurred in his presence, and to use all force necessary to accomplish that purpose, and if there was created in the mind of accused a reasonable apprehension of danger, he had the right to defend himself, but that if accused sought the meeting with prosecuting witness, and sought to arrest him with the purpose of provoking a difficulty with intent to take the life of the prosecuting witness, or to do him bodily harm, then he could not justify his acts on the ground of self-defense, is not erroneous in depriving accused of his right of self-defense, and in failing to tell the jury that he must not only have sought the accused for the purpose of provoking the difficulty, but that he must have done some act with intent to bring it about.
    [Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    Appeal from District Court, Webb County ; J. F. Mullally, Judge.
    William Stoner was convicted of aggravated assault, and lie appeals.
    Affirmed.
    Dickens & Dickens, of Austin, and Hicks & Hicks & Teagarden, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, ' J.

Appellant was indicted, charged with assault to murder, and, when tried, convicted of aggravated assault, and his punishment assessed at a fine of $100 and imprisonment in the county jail for three months.

An application to change the venue of the case was made by appellant, he alleging there “was in Webb county a dangerous combination against him, instigated by influential persons, by reason of which he cannot expect a fair trial in said county.” This application was contested by the district attorney. The application was overruled, and the bill of exceptions presents the testimony heard by the court. It is quite lengthy';' hut, after a careful perusal of it, we cannot say the trial judge abused his discretion. There is much evidence pro and con on the issue, and doubtless the district judge weighed it well. Grissom v. State, 4 Tex. App. 383; Noland v. State, 3 Tex. App. 598; Magee v. State, 14 Tex. App. 366; Martin v. State, 21 Tex. App. 10, 17 S. W. 430; Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858.

We think the application for a continuance shows that the diligence to secure the attendance of the witness Wade is not sufficient to entitle appellant to a reversal of the case. In addition to that no witness on this trial — and á large number of eyewitnesses were introduced — place Wade in a position where he could have seen the affray. In fact the witness for both the appellant and the state name the persons present, and by none of them is Mr. Wlade seen there on that occasion. So, on the motion for a new trial, the court could well conclude that if the witness had been present at the trial, he would not have testified as stated in the application.

In bills of exception Nos. 3, 4, 5, and 6 appellant complains, first, that the sheriff nor his deputies were permitted to summon the talesmen. As the record discloses the appellant was a deputy, of the sheriff, and if the state’s theory of the case is true, the assault was instigated by the sheriff, and further that the sheriff had also been indicted for participating in this assault, the court did not err in instructing the constable of the precinct, after swearing him, to summon the jurymen. Neither did the court err in placing the jury in the case in charge of the deputy constable after it was impaneled, after duly swearing and instructing him under the evidence in this case. Nor was there any error in refusing to quash the panel of jurors summoned by the constable on order of the court; the only ground alleged being that the court had no authority to authorize him to summon the jurors.

A number of alleged bills of exception to the charge of the court were filed after the adjournment of the court. As they were not presented to nor approved by the trial judge, these bills cannot be considered. The only provisions of the charge we can review are those complained of in the motion for a new trial, and which were called to the attention of the court or acted on by him.

In one part of the charge the court instructed the jury: “On the issue of self-defense, you are instructed that if any person shall go upon a public street and use loud and vociferous or obscene, vulgar, or indecent language, in a manner calculated to disturb the persons there present, he is guilty of a breach of the peace; and a peace officer may arrest such offender, without warrant, if the offense is committed in his presence. If the offender resists arrest, the officer may oppose such force as is necessary to overcome the resistance; but he shall not take the life of the person resisting, unless he has just ground to fear that his own life will be taken, or that he will suffer great bodily injury in making the arrest. If, therefore, the said Manuel Garcia Vigil had used loud and vociferous or obscene, vulgar, or indecent language, on a public street in Laredo in a manner calculated to disturb the persons there present; and if the defendant, a peace officer, was present, and undertook to arrest said Vigil for said offense, and if said Vigil violently resisted such arrest, and if from the acts of the said Vigil, or from his words coupled with his acts, there was created in the mind of the defendant a. reasonable apprehension that he (the defendant) was in danger of losing his life or of suffering serious bodily harm at the hands of the said Manuel Garcia Vigil, then the defendant had the right to defend himself from such danger, or apparent danger, as it reasonably appeared to him at the time, viewed from his standpoint, and he was not bound to retreat in order to avoid the necessity of killing the said Vigil. If you believe that the defendant, while arresting said Vigil and overcoming resistance, struck the said Vigil with his pistol or fired on him, or struck him with his pistol and fired on him, as a means of defense, believing, at the time that he did so (if he did so), that he was in danger of losing his life or of serious bodily injury at the hands of the said Vigil, then you will acquit the defendant, unless you further believe from the evidence beyond a reasonable doubt that the defendant sought the meeting with the said Manuel Garcia Vigil and sought to arrest him for the purpose of provoking a difficulty with the said Vigil, with intent to take the life of the said Vigil, or to do him such serious bodily injury as might probably end in the death of the said Vigil, and if you so believe from the evidence beyond a reasonable doubt, then you are instructed that if the defendant sought such meeting for the said purpose and with such intent, the defendant would not be permitted to justify on the ground of self-defense, even though he should thereafter have been compelled to act in his own self-defense; but if he had no such purpose and intention in seeking to meet or to arrest the said Manuel Garcia Vigil, then his right of self-defense would not be forfeited, and he could stand his ground and defend himself by the use of such means of defense as the facts and circumstances indicated to be necessary to protect himself from danger or what reasonably appeared to him at the time to be danger.”

There are a number of complaints to this paragraph, of the court’s charge, and is the only portion of the charge complained of in the motion for a new trial. The evidence in the case would disclose that Manuel Garcia Vigil was the editor of a paper published in Laredo, called the Progreso. That sheriff Sanchez had been criticised by this paper, and that the sheriff had written the editor a letter which reads as follows: “April 28th of 1913. To the Laredo Publishing Company, Present. In the No. 202 of the Progreso in you making reference to what I said in my manifesto to the public, you, besides insulting me on different occasions, gratuitously you challenge me in a determined and decided manner, as I do not know who are or who they are that challenge me for my government, I beg you to tell me who or who they are, the persons that make themselves responsible of so many gratuitous insults that I have been the object of. Your attentive and faithful servant, Amador Sanchez.” Appellant carried this letter to the newspaper office and idelivered it. Some week or 10 days thereafter the editor and three of his friends went to Ross’ saloon, and were seated at a table. While there the sheriff, appellant, and two of their friends also came in and took seats at another table. The sheriff got up and went in an adjoining room, and shortly thereafter appellant got up and went into this room and talked with the sheriff, but what was said is not disclosed by the record. Appellant returned and took his seat with his friends. The editor and his friends got up first and went out one door, when the appellant and his two friends got up and went out another door. The state’s contention is that Mr. Vigil and his friends were guilty of no improper conduct either in the saloon nor on their way to the editor’s office where they had started; that after they got up and started to the office of the Progreso, appellant and his friends got up, went out on the streets, and one of them gave a sarcastic laugh, when appellant rapidly approached Vigil from the rear, placed his hands on Vigil’s shoulder, making a remark, and then struck Vigil on the head with his pistol, when the fight followed; that Sheriff Sanchez participated in this fight.

Appellant’s contention is that while Vigil and his friends were in the saloon they used obscene language; that he did not arrest them then, but after they had gotten up and gone out on the street they continued to do so, Vigil being the one principally thus offending; that appellant approached him for the purpose of arresting him on account of the use of such language, when Vigil drew a pistol, resisted arrest and the fight ensued.

The court’s charge, as copied above, we think, fairly submitted the issue as thus made.

The first criticism of this charge is that it is an incorrect limitation upon appellant’s right of self-defense; (2) that by it, if appellant sought the said Vigil, with the intention of provoking a difficulty, he would be deprived of his right of self-defense, though he did no act and used no language at the time calculated to provoke the difficulty; (3) that said charge is erroneous, because it fails to tell the jury that he must not only seek the said Vigil for the purpose of provoking a difficulty, but tlfat he must do some act or use some language with the intent to bring on the difficulty. There are a number of assignments raising these same issues in different words, but the above succinctly states appellant’s objection to the charge as given. The first part of the charge tells the jury that appellant would have the right to arrest Vigil without warrant if a breach of the peace occurred in his presence, and use all force necessary to accomplish that purpose. This was the defensive theory, and is the sole theory upon which appellant sought to justify his conduct in beating Vigil on the head, and in shooting at him. The state’s theory was that Vigil was guilty of no breach of the peace; that because Vigil had criticised the sheriff in his paper, without other provocation, appellant approached Vigil and struck him on the head with his pistol, and continued to strike him until both got out in the street; Vigil then drew a pistol, and both began to shoot, which shooting was joined in by the sheriff, Sanchez. The charge simply instructs the jury that if this state of affairs is the way the difficulty arose, appellant could not claim to have acted in self-defense. It is a fact undisputed in the record that appellant did strike Vigil on the head and inflict several wounds on his head, and that the firing of the pistols came after these wounds had been inflicted. Under such circumstances we think the charge very favorable to appellant ; and not subject to the above criticisms.

The judgment is affirmed.


author: PBENDEBGA8T, P. J.

text:
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Burglary (§ 4) — Structure Burglarized — “House.”
    A structure burglarized was a display window which was made a part of the building when it was constructed in that two of the outer walls of the window were the brick walls of the building, and the other was a wooden and brick structure partitioning off the showcase from the storeroom proper. The front of the show window was a glass window, raised from the bottom, and the window was from 9 to 18 inches deep and 5 or 6 feet high and wide, and the case contained four or five glass shelves for the goods, and was locked at the. bottom of the window by a padlock. The showcase was outside of tte store doors in the vestibule of the store, and there was no entrance to the showcase from the inside of the storeroom. Pen. Code 1911, art. 1303, provides that the offense of burglary is constituted by entering a house by force, etc., at night, and article 1S09 provides that a house is any building or structure erected for private use of any individual and of whatever material it may be constructed. Held, that the show window was a “house” within the statute, so as to make the forcible entry thereof burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.]
    2. BurglaRY (§ 4) — '“House.”
    The word “house,” as used in Pen. Code 1011, art. 1803, providing that the offense of burglary is constituted by entering a house by force at night, is given the most comprehensive meaning in view of article 1300, providing that the word shall mean any building or structure, of whatever material, erected for private use.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.

    For other definitions, see Words and Phrases, vol. 1, pp. 908-911.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    J. E. Williams was convicted of burglary, and appeals.
    Affirmed.
    H. B. Sutherland, of Corpus Christi, for appellant. O. E. Lane, Asst Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PBENDEBGA8T, P. J.

Appellant was convicted of burglary and the lowest penalty imposed.

There is but one question in this case, and that is whether or not the place burglarized was a house or structure, under our burglary statute, which would be the subject of burglary. The evidence, without question, was sufficient to sustain the conviction if the place burglarized was such a house or structure as could be burglarized. Appellant does not question this. The evidence by all the witnesses on the subject, without contradiction, shows that the place burglarized was a display case or window, a- part of the three-story brick store building, occupied and controlled by S. J. Lichtenstein in Corpus Christi; that when the building was built and constructed a place was provided for this display case or window to be placed in and be a part thereof; that two of the outer walls thereof were the brick walls of said building. The other was a wooden, or wooden and brick together, structure partitioning off this ease from the storeroom of the store proper; that the front of it was a glass window which raised from the bottom and wherein goods were placed for display or exhibition; that the case was some 9 to 18 inches deep, the witnesses varying as to its depth. One witness stated that it was only 9 inches deep, others from 12 to 18 inches deep; that it was 5 or 6 feet high and 5 or 6 feet wide; that the movable glass window was in wooden casings, and there were four or five glass shelves in it upon which the goods were placed and displayed; that a secure lock was on the bottom of the window and it was kept locked; that it was on the outside of the store doors in the vestibule of the store; that there was no entrance or door from the inside of the storeroom to the case, and that the only entrance thereto was from the vestibule through this glass door or window; that when opened this glass, door or window shoved straight up into the ceiling of the building. ■ In addition to the testimony of the several witnesses describing said display or showcase, a plan or sketch of it and the vestibule and the doors entering the storeroom proper were used by the witnesses before the jury to show what it was, how it was situated, and all about it. Still, in addition, a photograph was taken of it, introduced in evidence, and used by the witnesses to show the whole of it- in detail. Neither this sketch nor photograph is contained in the statement of facts before us. The evidence, without contradiction, shows that on or about the night of April 14, 1913, the lock on this window was broken open and several pairs of shoes stolen out of it.

Our burglary statute (article 1303, Pen. Code) is: “The offense of burglary is constituted by entering a house by force, threats or fraud, at night; or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.”

The “entry” into a house includes every kind of entry but one made by the free consent of the occupant. Article 1306, Pen. Code. The entry is not confined to the entrance of the whole body; it may consist of the- entry of any part for the purpose of committing a felony, or it may be constituted by the introduction of any instrument for the purpose of taking from the house any personal property, although no part of the body of the offender should be introduced. Art. 1307, Pen. Code. Within the meaning of our burglary statute a “house” is any building or structure erected for private use of any individual and of whatever material it may be constructed. Art. 1309, Pen. Code.

It has uniformly been held under our burglary statute that “house” has the very broadest signification and meaning, and it is very comprehensive. Jame v. State, 63 Tex. Cr. R. 562, 140 S. W. 1086; Barber v. State, 69 S. W. 515. This court in Jame v. State, supra, held that a refrigerator within a refrigerating building was the subject of burglary. In Barber v. State, supra, that a corncrib in which was kept feed in store for horses was such house. In Bigham v. State, 31 Tex. Cr. R. 244, 20 S. W. 577, that a sheriff’s office and vault therein in the courthouse was such a house. In Favro v. State, 39 Tex. Cr. R. 452, 46 S. W. 932, 73 Am. St. Rep. 950, that a tent fastened to a plank nailed to stakes driven into the ground stretched over a pole from two forks driven into the ground, and which had a door made by placing a loose door not fastened to the tent, arid boxes to obstruct the ingress thereto, was such house. In Irvin v. State, 37 Tex. 412, and Albritton v. State, 26 S. W. 398, that a smokehouse was such house. In Willis v. State, 33 Tex. Cr. R. 168, 25 S. W. 1119, that a box somewhat in the shape of a piano box and a little larger, in which a vendor kept his fruits from which he could make sales by remaining out on the ground at it, was such house. In Anderson v. State, 17 Tex. App. 305, that an office picketed off in one corner of a hardware store, ten by ten feet, the pickets three inches apart, four feet high, and an open space between the tops of these to the top of the house, about six feet, with a small gate or door into this in which a safe and books were kept, was such house. In Grow v. State, 48 Tex. Cr. R. 25, 85 S..W. 1057, that a shed on one side of- a log barn to which entrance could be effected only by tearing off part of the walls thereof from which harness were stolen was such house.

We are of opinion that, under our burglary statute and decisions thereunder, the said display case or window was such house or structure as was the subject of burglary. Even if appellant’s bills complaining that the court would not permit certain witnesses to answer certain questions therein propounded to them were such as to require this court to review the question (James v. State, 63 Tex. Cr. R. 76, 138 S. W. 612, and Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112), they would present no error, because the evidence in the case, without question and without doubt, establishes all the facts sought to be proved by them, and that the place burglarized was such house or structure, under our burglary statute, that could be burglarized.

The judgment is affirmed.


author: PRENDERGAST, P. J. DAVIDSON, J.

text:
    VINCENT v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Weapons (§ 17) — Carrying Weapons — Sufficiency of Evidence.
    Evidence,_ in a prosecution for unlawfully carrying a pistol, held sufficient to sustain a conviction.
    [Ed. Note. — Eor other cases, see Weapons, Gent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    2. Criminal Daw (§ 1158) — Review—Question of Fact — Finding of Trial Judge.
    On a trial before the court without a jury on the charge of unlawfully carrying, a pistol, the court seeing the witnesses and their manner of testifying is the judge of their credibility, and this court has no power to say that ho shall believe or disbelieve the testimony of defendant and Ms witnesses, even though there was no direct contradicting testimony on the part of the state.
    FEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074; Dec. Dig. § 1158.]
    Davidson, J., dissenting.
    Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    Will Vincent was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    R. H. Holland, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was' tried before the court without a jury, charged with unlawfully carrying a pistol, and his punishment fixed at the lowest prescribed by law.

The only contention by appellant is that the evidence is insufficient to sustain the conviction, or that the evidence shows, without contradiction, that he had the right to carry a pistol at the time and place he did so, and should have been acquitted.

Appellant has a bill of exception in the record making said contentions wherein he gives the evidence in full, heard on the trial. The court, in approving the bill, qualified it by stating that he did not believe the defendant and his witnesses’ testimony to be true.

It is unnecessary to give any extended statement of the testimony. The state proved by uncontradicted testimony that the appellant had the pistol on or about his person at the time and place charged in the indictment. In fact, the appellant and his wife both positively so testified, in addition to the state’s testimony.

The appellant testified that on August 17, 1912, he spoke to Dan Carmichael, with whom he was working in the railroad shops at Houston, and made arrangements to borrow from him $10 and secure the loan by the pawn of his pistol; that Carmichael at that time agreed to make him the loan of $10 and take his pistol as security; that on August 19th he took the pistol from his home to the railroad shops for the sole purpose of pawning it to Carmichael for said loan; that, when he then took the matter up with Carmichael, Carmichael told him he could not loan him the $10, but that he would loan him $2 without any security, and that he could take his pistol back to his home; that he and Carmichael then examined the pistol and found it rusty and the cylinder would not revolve, cleaned it up, and got it in good working condition, and that he left it there until the next day; that as he went to leave home on that morning, the day on which he was charged with carrying a pistol, his wife told him that some sister of the lodge to which she and the sister belonged had made some charges against her and a negro named Davis for improper conduct and violating some rules of the order, and that she was going there that evening between 5 and 6 o’clock to have the charges tried, or cleaned up, and for him to stop by there as he returned from work and call for her and she would go home with him; that the hall was on his direct route back and forth from his home to his place of work; that he always quit work at half past 5 in the evening and liad to wash, which he did, and got his lunch basket, and then took his pistol with him; that, when he got to the hall with his pistol, he waited some ten minutes or more for his wife to come out, and that he sent some sister of the lodge in to tell her to come; after he had been waiting for this ten minutes or longer, he heard his wife screaming, holloing, and calling for him; that at that time said negro Davis appeared at an opening of the lodge hall, and began to shoot at him, and he got his six-shooter out and returned his fire, shooting at Davis twice; neither hit the other; that he would not have stopped at said hall on this occasion if it had not been the request of his wife that morning to do so.

His wife testified and in some particulars corroborated his testimony. However, she says she told him that some woman had made charges against her about violating some rules of her lodge, and she was going there that evening between 5 and 6 o’clock to clear up the charges, and that she knew her husband would pass along there about that time, and she told him to stop for her at that time, and she would go on home with him; that she was inside of the hall along about that time, and a woman and a man, evidently this man Davis, began beating her and pulled her hair and cursed her; and that she screamed and holloed for her husband as loud as she could, and he responded to her call, and the shooting took place.

Carmichael testified corroborating appellant about the contemplated loan and pawn of the pistol to him to secure it, the cleaning it up at the particular time it was, and putting it in first-class shooting condition, and that appellant took it with him on that particular evening to take the pistol back home.

Judge DAVIDSON has written and presented in consultation an opinion herein wherein he contends that as the testimony was un-contradicted about said proposed loan and pawn of the pistol, and that said hall was on the direct route of the appellant between his home and place of work, and that he passed there back and forth from day to day, and as the state introduced no evidence to contradict appellant and his witnesses in these matters, a jury trying the case, nor the court in this instance who tried it without a jury, could not arbitrarily discard their testimony. And that for the purpose of pawning his pistol appellant had the right to carry it back and forth from his home to his place of business, and that having failed to carry it back home, and the fact that he incidentally got into trouble going home, would not militate against the fact that he had a right to carry the pistol home.

We think Judge DAVIDSON has misapprehended the material facts on these questions. It might be that a man would have the right to take his pistol from his home to his place of business to pawn it in a business transaction, and, failing in it, to carry .it back home, without violating the law, yet the evidence in this case is such- as the court unquestionably could believe, as he did, that appellant did not carry this pistol back and forth for that purpose, and his, his wife’s,, and his witness Carmichael’s testimony on that point was untrue; and the testimony would clearly authorize the court to believe that the appellant did not carry his pistol to his place of work for that purpose, but that he carried it there for the purpose of fixing it up in first-class shooting condition; and that he did so on this particular occasion so that he could be on hand with it when his wife had her trial and, when called upon, produce it and shoot Davis. He says his wife told him some sister had made charges against her for improper conduct with said negro man Davis, and the court could well believe he carried the pistol on that occasion for that purpose, and not for the purpose of taking it back home, failing in pawning it. In .other words, it shows and justified the court to find that he anticipated a row between his wife and Davis and the sister who had preferred charges against her, and that he prepared this pistol and took it to that place at that time for the purpose of having it ready to shoot down his wife’s accusers when she called on him for.that purpose, and that she did call upon him, knowing that he would be there and was there at the time, and that he prepared himself for the scrap and took his pistol with him for no other purpose; and true to this purpose and intention he promptly responded with his six-shooter, firing at her antagonist twice, when she called for him.

All these witnesses were before the judge of the lower court personally. He saw them, heard their testimony, their manner of testifying, and all the facts and circumstances connected therewith. The law makes him, and not this court, the judge of their credibility. This court has no power, right, or authority to tell the jury or the court below that they shall believe and not disbelieve the testimony of the defendant and his wife and witness, even when there is no direct testimony by the state disputing them. The lower court and the trial jury are very much better qualified to judge of the veracity of witnesses and believe or disbelieve them, if no one expressly contradicts them, but the circumstances contradicts them, than this court can possibly be from a written statement of the facts.

The evidence, without controversy, shows that appellant carried the pistol on his person at the time charged in the indictment, and the circumstances clearly justified the lower court to believe, as he did, that the testimony of the appellant and his witnesses about pawning this pistol at this particular time was false, but, instead, that he prepared himself, anticipating a row and fight at this particular time between his wife and her accuser or accusers, and that he took this pistol with him and had it on this occasion for the express purpose and for no other purpose than to shoot her accusers, or attempt to do so, when she called upon him for that purpose, and that he waited there with the pistol for that and no other purpose and carried out his purpose, and that the lower court was amply justified in believing that the testimony of the appellant and his witnesses as to the purpose for which he had and carried the pistol on this occasion was false.

The judgment will be affirmed.

DAVIDSON, J.

(dissenting). Appellant was convicted for carrying a pistol; his punishment being assessed at a fine of $100.

It is conceded that appellant had the pistol, and he fired it at another negro; the defendant being a negro. The state’s witness says he saw the defendant with the pistol on the occasion mentioned, which was near a building on one of the streets in Houston, and saw him fire it into the door of the house. Appellant and two other witnesses testify that a day or two before appellant was seen with the pistol he had made an agreement with Carmichael for the lending of some money to him by Carmichael; the pistol to be placed in pawn as security for the money, which was $10. This money he sought to borrow to pay the expenses of his wife to Marlin from Houston. Leaving home in the morning for his place of business, where Carmichael was also engaged in business in a machine shop, he carried the pistol in his lunch basket. Upon reaching the place, he and Carmichael examined the pistol and found it rusty; they cleaned it. Carmichael declined to let him have $10 on the pistol, but did let him have some money without taking the pistol as security. At the time he was seen with the pistol, he was en route home, and on his direct and usually traveled route home. Upon leaving his place of business he wrapped the pistol in some paper and placed it in his lunch basket. His wife, in the morning upon his leaving home, informed him she would be at this particular house, which was a negro lodge. She requested him to call for her on his return that evening from his work. She had been summoned there for some reason by the lodge. On his return home she was to accompany him from this lodge. Reaching the building, he- stopped and sent word to his wife that he was waiting for her. Before the messenger returned, he heard his wife screaming and hol-loing for his assistance. A man and woman were beating her. He immediately got his pistol out of the basket and ran to one door; but, finding it closed, he ran to another. Upon reaching that door a negro on the inside fired at him. He returned' the fire. This released his wife. She came and accompanied him to a policeman or officer named Gordon; he carrying the pistol with him. He surrendered and was charged with assault to murder as well as for carrying the pistol. The assault to murder case was tried in the district court; carrying the pistol case was tried in the county court at law. He was acquitted of assault to murder. These are, in substance, the facts. The state introduced no evidence to contradict his statement or the statement of his wife, or the testimony of Carmichael.

The state did not controvert, nor seek to controvert, the defensive evidence; therefore there was no conflict. Eliminate the state witness’ evidence, and the case remains the same on the facts, so far as appellant having the pistol is concerned. Appellant had the legal right to carry the pistol to his place of business, and he had the legal right also to return it to his home. He had the further right to carry it to Carmichael to pledge or pawn or trade it. Failing in this, he had the further right to carry it back home. The only evidence the state introduced was the fact that appellant had the pistol and fired it. Appellant testifies to the same facts, but excuses it under the evidence stated. The state did not offer any testimony in rebuttal showing, or tending to show, in the remotest degree, that the testimony of Carmichael, appellant, and his wife was untrue. Therefore, I repeat, there was no conflict in the evidence, and defendant’s evidence stands un-controverted. Where there is a conflict in the testimony the jury, or the court, in the absence of the jury, trying the case, may pass upon and decide that question; but, if there be no conflict, then the jury nor the court is authorized arbitrarily to discard the testimony. The evidence in that event would not be sufficient. I understand this to be the settled rule of law, and, if it is not, it ought to be. Dillingham v. State, 32 S. W. 771; Impson v. State, 19 S. W. 677; Sanders v. State, 20 S. W. 556; West v. State, 21 Tex. App. 427, 2 S. W. 810. See, especially, Irvine v. State, 18 Tex. App. 51. That appellant had the right to carry his pistol to his place of business and return it home has been settled by an unbroken line of authority in this state. See Lewis v. State, 52 Tex. Cr. R. 7, 104 S. W. 901; Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197; Snider v. State, 43 S. W. 84; Zollicoffer v. State, 43 S. W. 992; Foster v. State, 59 Tex. Cr. R. 44, Ann. Cas. 1912A, 1206,126 S. W. 1155; Craine v. State, 42 S. W. 302; Mathonican v. State, 51 Tex. Cr. R. 471, 102 S. W. 1123; Campbell v. State, 28 Tex. App. 44, 11 S. W. 832. It has also been decided in an unbroken line that the accused has the right to stop en route home and demand an explanation of an insult to his wife,, had he even done so. Quinn v. State, 50 Tex. Cr. R. 209, 96 S. W. 33. He could also have legally taken it to where he had the difficulty to protect his wife, had he known she was going to be in trouble, or if lie anticipated that she would be in trouble. Barkley v. State, 28 Tex. App. 99, 12 S. W. 495. And it would make no difference that it was loaded. Pressler v. State, 19 Tex. App. 52, 53 Am. Rep. 383; West v. State, 21 Tex. App. 428, 2 S. W. 810; Fields v. State, 45 Tex. Cr. R. 563, 78 S. W. 932. Nor is he required to pursue the shortest route home. Granger v. State, 50 Tex. Cr. R. 489, 98 S. W. 836; Brent v. State, 57 Tex. Cr. R. 411, 123 S. W. 593. In this particular case, however, appellant was pursuing his accustomed route from his place of business to his home, and it is even shown to be the shortest route. And it is further testified beyond controversy that he was not in the habit of carrying his pistol between his place of business and his home. He had only this one time carried it to his place of business for the purpose stated in the testimony, and was carrying it back home at the time he got into the difficulty with the other negro, and there is no controversy on this question. For full collation of the authorities, see Branch’s Grim. Law, § 190. The evidence in this case does not justify this conviction, and this negro ought to have been acquitted.

For the reasons above indicated, I most respectfully enter my dissent.


text:
    LEE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Punishment.
    While the punishment for murder should not be assessed at death, unless the testimony to its fullest extent meets the requirements of the law, where the evidence justifies such punishment, the Court of Criminal Appeals cannot interfere except for prejudicial error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 365) — Evidence—Other Offenses.
    On a trial for murdering W., where the killing of O. was a part of the transaction occurring on the occasion of the homicide, evidence relative thereto was properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Doc. Dig. § 365.]
    3. Homicide (§ 156) — Evidence — Admissibility.
    On a trial for homicide, a note sent by accused to the sheriff, which disclosed premeditation and a formed and fixed design to kill, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 286, 287; Dee. Dig. § 156.]
    4. Criminal Law (§ 1090) — Appeal—Reservation op Grounds op Review — Bills op Exception.
    Alleged improper argument by the county attorney could not be reviewed on appeal, where there was no bill of exception in the record showing that such argument was used.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 570*) — Evidence — Weight and Sufficiency.
    Where the cross-examination of accused’s witnesses, who testified in support of his plea of insanity, in effect destroyed such plea, it was not necessary for the state to introduce other witnesses.
    [Ed. Note. — For other cases, Law. Cent. Dig. §§ 1285-1288; 570.] see Criminal Dec. Dig. §
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Thomas Lee was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Phillip O. Lopp, A. C. Heath, and H. D. Payne, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases See same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

In this case, as in all cases, when this punishment is inflicted, we have given most careful consideration to the entire record. It is a punishment that ought never to be inflicted only in those instances where the testimony, to its fullest extent, meets the requirements of the law; but, if the evidence justifies such punishment, then we have no right to stay the hands of the law, unless in the trial of the case there was some error committed which was prejudicial to the person on trial. In this case there are but three bills of exception. In the first bill of exceptions it is shown that appellant objected to the proof that he had killed Policeman Ogletree. The bill is so incomplete as to hardly call for review; but, inasmuch as the death penalty was assessed, we have read the entire record to determine whether or not this testimony ought to have been admitted. After reading the record we are of the opinion that it was" admissible, as it is a part of the transaction occurring on that occasion.

The next bill complains of the action of the court in admitting a note sent by appellant to the "sheriff of the county. This note discloses premeditation and a formed and fixed design to kill, and under such circumstances it was admissible. The third bill relates to the same matter as the first bill, the killing of Ogletree. While it is true that appellant was being prosecuted for the killing of Walter Moore, yet the killing of Officer Ogletree was so connected and incident to this offense as to render this evidence admissible.

There is no bill of exception in the record showing that the county attorney used the argument complained of in the motion for a new trial; consequently we cannot review that ground in the motion.

The evidence amply supports the verdict. The record would disclose that appellant had gambled the night before with one Pete Soles, and lost his money; that he decided to kill Pete Soles, armed himself, and went to hunt for him, and when he found him he shot Mm; that Walter Moore had been a witness against him on a former occasion, and after shooting Pete Soles he said, “I know they are going to get me, and I am going to get as many of them as I can;” that he went to the place where he found Walter Moore, and said, “O, yes, I got you now,” and shot and killed Walter Moore.

Defendant’s plea was insanity. This plea was fully and fairly presented by the court, and in a way not complained of by appellant. But he says when he introduced this evidence on insanity the state sought to have introduced some witnesses. When appellant’s own witnesses, on cross-examination, would, in effect, destroy this plea, it was not necessary for the state to introduce other witnesses.

The judgment is affirmed.


text:
    Ex parte ZUCCARO.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Habeas Corpus (§ 44) — Jurisdiction — Court op Criminal Appeals.
    Under the constitutional provision giving the Court of Criminal Appeals jurisdiction only in criminal cases, it has no jurisdiction of an application for a writ of habeas corpus by a person committed to jail for .violating a temporary injunction, in an action brought by the county attorney to enjoin him and other proprietors of theaters and moving picture shows from giving shows therein on Sunday, and charging a fee for admission thereto, though the act sought to be enjoined is a violation of the Penal Code 1911, art. 302, since the action was a civil case, especially in view of Rev. Civ. St. 1911, art. 1529, authorizing the Supreme Court, or any justice thereof to issue writs of habeas corpus where any person is restrained in his liberty by virtue of any order, process, or commitment issued by any court or judge on account of the violation of any order, judgment, or decree made in any civil cause.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 35; Dec. Dig. § 44.]
    2. Sunday (§ 6) — Theaters and Shows— Oppenses — “Place op Public Amusement.”
    The opening of theaters and moving picture shows on Sunday, and the exhibition therein of vaudeville performances and plays, or moving picture scenes, where a fee is charged for entrance thereto, violates Penal Code 1911, art. 302, providing that the proprietor of any place of public amusement, or the agent or em-ployé of any such person who shall permit such place to be open for public amusement on Sunday, shall be fined as therein provided, and that the term “place of public amusement” shall be held to include circuses, theaters, variety theaters, and such other amusements as are exhibited and for which an admission is charged.
    [Ed. Note. — For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. § 6

    For other definitions, see Words and Phrases, vol. 6, pp. 5389, 5390.]
    Davidson, J., dissenting.
    Original application by Andrew Znccaro for a writ of habeas corpus.
    Writ dismissed, and petitioner remanded to the custody of the sheriff.
    Baskin, Dodge & Eastus and John W. Wray, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For otter oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes-

   PRENDERGAST, P. J.

This is an original application to this court for a writ of habeas corpus and a companion application to Ex parte Mussett, 162 S. W. 846, this day dismissed. It shows that on January 27, 1912, the state of Texas by the county attorney of Tarrant county instituted a suit in the Sixty-Seventh district court of Tarrant county, Tex., seeking to enjoin this applicant, and others, from operating his place of business as a moving picture show in the city of Ft. Worth on Sunday, for which he charged an entrance fee. The petition is against the applicant herein and several others, naming them. Some of the others were alleged to be operating theaters and giving shows therein on Sunday and charging a fee thereto. Others, like the applicant herein, were proprietors of other moving picture shows. That in such theaters vaudeville performances and plays were given for public amusement, and that in all the moving picture shows scenes and performances, com* monly known as moving pictures, were shown and exhibited for public amusement, for admission to all of which a fee was charged; that all of said persons had entered into a combination and conspiracy together and with each other to violate the laws of this state in this: That they and each of them have entered into a combination and conspiracy to operate, open, and permit to be opened, their respective theaters and places of public amusement on Sunday, and to give theatrical performances in said theater and exhibitions of moving pictures in said moving picture shows, and to charge a fee for admission thereto in violation of article 302 (199) of the Penal Code, Quoting it, prohibiting such business on Sunday; that said parties are now carrying out their conspiracy, and have employed attorneys to represent said combination, and each and every one of the defendants therein named, for a stipulated consideration in each and every ease in-which they, or any of them, may be prosecuted in the courts of this state for the violation of said law, and said article of the Penal Code prohibits such exhibitions, and makes any one guilty of a misdemeanor who violates such article. That said theaters and moving picture shows give several performances during the day on Sunday, and derive-hundreds and thousands of dollars each Sunday that they so operate in violation of such law, and the proprietors, managers, agents, and employes, the defendants named, can. readily and easily pay the maximum fine-provided for a violation of said law and still continue the operation of their business in violation of the law and the plain intent thereof. That they, and each of them, have-for some 10 or 12 Sundays before then operated their places in yiolation of said law, and that some of them have been prosecuted in the county court of Tarrant county, and have, by a jury, been given the maximum fine in said cases, but that has not deterred them, ■and will not, from further violation of said law; that for the reasons above set forth irreparable injury is done the state of Texas, and there is no adequate remedy at law which can avail to prevent said parties from the violation of said law. The petition then further sets up, in a separate paragraph, and, as we take it, a separate count, that an epidemic of meningitis is prevailing in Ft. Worth and in Dallas, Tex., and, such houses in Dallas, because thereof, having been closed up, large numbers of persons from that city and elsewhere go to Ft. Worth for the purpose of attending, and attend, these performances by these parties on Sunday; that by reason thereof the public health demands that some extraordinary action be taken to close said theaters and moving picture shows on Sunday, and if such relief is denied, irreparable injury will result to the state, and it has no adequate remedy at law. The petitioner then prays for a restraining order enjoining, restraining, and prohibiting defendants, and each of them, from opening, or permitting to be opened their theaters and moving picture shows on any Sunday from and after the filing of this petition, and the cause be set down for hearing at some future day and for final hearing; that they be notified, and upon such hearing, make permanent the temporary restraining order, forever enjoining, restraining, and prohibiting them and each of them from opening, or permitting to be opened, their theaters and picture shows on Sunday, and from giving therein on Sunday a performance for admission to which a fee is charged, and from a further violation of said law, for costs and all other relief, in law and in equity, to which the state may be entitled. This is sworn to by the county attorney. We have given merely a brief outline of the petition. This application further shows that said petition was presented to Judge Simmons, judge of said Sixty-Seventh judicial district, and that he, on January 27th, entered his fiat thereon as follows: “Petition granted, and clerk of the district court of Tarrant county, Tex., directed to issue and direct to each and every defendant named in this petition an order enjoining, restraining, and prohibiting them and each of them from opening or permitting to be open their theaters and moving picture shows, respectively, on Sunday, for public amusement, from giving therein any performance for public amusement, and from charging a fee for admission thereto, or from doing any of said acts until'further orders of this court. This cause set down for hearing Saturday, February, 3, 1912, at 2 o’clock p. m., and clerk directed to issue notice hereof to defendants, and each of them. No bond shall be required of the applicant.” This is signed officially by Judge Simmons and dated January 27, 1912. Said petition is shown to have been filed and docketed and said fiat filed in said court on said date. The applicant then further shows that Judge Marvin H. Brown succeeded Judge Simmons, as Judge of said district court, and that on November 25, 1913, he entered his fiat or order in said cause and court, directed to the clerk of said court, to instantly cite said applicant and Charles Mussett to appear before him on Wednesday, November 26, 1913, at 9 a. m., to show cause why they and each of them should not be held in contempt of court for opening their respective theaters on Sunday in violation of said injunction; that the applicant herein duly appeared and filed his sworn answer to the order and notice of Judge Brown, and that Judge Brown then heard the case fully and entered a judgment reciting that he had heard the case and the evidence therein, and that it was shown that the applicant gave a picture show on Sunday, November 23, 1913, and violated said injunction. He was thereupon adjudged in contempt of court in violation of said injunction, fined $100, and sentenced to three days’ imprisonment in the county jail as punishment for said contempt. This order of Judge Brown is full and complete, and recites all facts necessary to' show a violation of said injunction. In accordance with the said fine and punishment the proper writ was issued to the sheriff!, who took the appellant in custody in obedience thereto and held him thereunder. This court, by a proper order, directed the filing and docketing of this application and set it down for hearing on December 3d, inst., at which time it was orally argued for both sides and duly submitted. In the meantime this court, by proper order, directed that the applicant should give bond in the sum of $1,000 to abide the action of this court on his application, which bond was duly executed.

We are met at the threshold of this inquiry by the question of whether or not this court has jurisdiction to grant the writ of habeas corpus in this case.

That the case in which this punishment in contempt was imposed is a civil case we have no doubt. Any judgment which would have been rendered by the district court of Tar-rant county in said cause could only have been appealed, and by either party, to the civil courts of this state, and it could not have been appealed to this court. By the Constitution of our state this court has jurisdiction in criminal eases only. It has no jurisdiction in civil cases of any character. It cannot grant a writ of habeas corpus in any case except a criminal matter. Likewise, our Supreme Court, and the Justices thereof, are given power and authority expressly by our Constitution to grant and bear writs of babeas corpus in all civil cases, and tbe Supreme Court, and neither of tbe Justices thereof, have any jurisdiction, power, or authority to grant such writs in criminal cases.

It is true that this court, in tbe case of Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684, in a matter practically exactly like this, granted and beard a writ of habeas corpus, and decided it November 15,1905. It may be that in other cases since then this court has first granted writs of habeas corpus in such matters. We can but believe that this court inadvertently did so, without its attention being called to the amendment of our Constitution and especially to the statute.

We call special attention to the Act of 1905, p. 20, now embraced in the Revised Civil Statutes of 1911, as article 1529 thereof, as follows: “The Supreme Court of Texas, or any one of the Justices thereof, shall have power, either in term time or vacation, to issue writs of habeas corpus in all cases where any person is restrained in his liberty by virtue of any order, process or commitment, issued by any court or judge, on account of the violation of any order, judgment or decree, theretofore made, rendered or entered by such court or judge in any civil cause; and said Supreme Court, or any one of the justices thereof, shall have power, either in term time or vacation, pending the hearing of the application for such writ, to admit to bail any person to whom the writ of habeas corpus may be so granted.” Certainly, the Legislature intended thereby to make certain that the Supreme Court had power and authority to issue the writ of habeas corpus in such cases as therein provided, and we think by the amended Constitution and said act of the Legislature it was intended that the Supreme Court should first be given an opportunity to take jurisdiction in such matters as are provided for by said statute in civil matters.

It is true that this court has expressly held that the opening and exhibition of moving picture shows and theaters on Sunday, such as are described in said petition to the Sixty-Seventh district court of Tarrant county, Tex., where a fee is charged for entrance thereto, is unquestionably a violation of the Penal Code of this statei and any one, whether principal, agent, or employé, who participates in such opening and exhibition is included and embraced in said Code. Oliver v. State, 144 S. W. 604, and Ex parte Lingenfelder, 64 Tex. Cr. R. 30, 142 S. W. 555. We have no doubt as to the correctness of the decisions in these cases. Nor do we have any doubt from the facts disclosed by the application herein and the said petition of the state filed in said Sixty-Seventh district court of Tarrant county that these persons could be punished criminally for a violation of said article of the Penal Code. While the violation of said article of the Code is a criminal offense, said suit is a civil ease, and applicant is held by the sheriff by virtue of process and commitment and order on account of the violation of an order of the said district judge and court, in the very terms of said statute. For a discussion of the question, see the opinion in said Mussett application.

Therefore the order of this court will be that the application for writ of habeas corpus herein be dismissed without prejudice to him, and he will be ordered remanded to the custody of the sheriff of Tarrant county.

DAVIDSON, J.

(dissenting). We have heard the application on oral argument after authorizing filing the application, and ought to dispose of the case. Our authority to do so is constitutional.


author: HARPER, J. DAVIDSON, J.

text:
    Ex parte MUSSETT.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Criminal Law (§ 1022) — Jurisdiction-Courts Subject to Review — Court of Criminal Appeals.
    The Court of Criminal Appeals is a court of final jurisdiction in matters in which it has any jurisdiction, and from its action no appeal will lie.
    [Ed. Note. — For other cases, see Criminal Law, Cent.- Dig. §§ 2581, 2582; Dec. Dig. § 1022.]
    2. Habeas Corpus (§ 44) — Texas Court of Criminal Appeals — “Civil Suit.”
    Const, art. 5, §§ 3, 5, as amended in 1891, authorized the Supreme Court to issue writs of habeas corpus, which authority theretofore had been in this court alone, and took away the civil jurisdiction of this court, and Rev. Civ. St. 1911, art. 1529, gave the Supreme Court power to issue writs of habeas corpus in all cases where any person is restrained of his liberty by virtue of any process, etc., issued by any court on account of any order or decree in any “civil suit.” Relator applied originally to this court for habeas corpus to obtain discharge on final hearing upon an injunction against the opening of a theater or moving picture show on Sunday, after order to show cause why he should not be held in contempt of court for violation of the injunction. Held, that after such amendments it was not contemplated that this court should entertain jurisdiction in any civil matter, that such suit brought in the district court was a “civil suit,” and that, in view of the Supreme Court’s jurisdiction, which would be more extensive than that of this court and final, the application would be refused.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 35; Dec. Dig. § 44.

    For other definitions, see Words and Phrases, vol. 2, p. 1200.]
    Davidson, J., dissenting.
    Original application by Charles Mussett for writ of habeas corpus.
    Application refused.

      Baskin, Dodge & Eastus and John W. Wray, all of Ft. Forth, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This is an original application for habeas corpus, and is a companion case to that of Ex parte Andrew Zucearo, 162 S. W. 844, this day decided. In that case the facts are so fully stated we do not deem it necessary to detail them here.' It will be sufficient to state that on January 27, 1912, the county attorney brought suit to enjoin certain theaters and moving picture shows from opening and showing on Sunday; that the district judge to whom same was presented, Hon. W. T. Simmons, judge of the Sixty-Seventh district, deemed the allegations in the petition sufficient, and entered the following order: “Petition granted and clerk of the district court of Tarrant county is directed to issue and direct to each and every defendant named in this petition an order enjoining, restraining, and prohibiting them, and each of them, from opening or permitting to be open their theaters and moving picture shows, respectively, on Sunday for public amusement, from giving therein any performances for public amusement, and from charging a fee for admission thereto, or from doing any of said acts until the further order of this court. This cause is set down for hearing Saturday, February 3, 1912, at 2 o’clock p. m., and clerk directed to issue notice hereof to defendants and each of them.” The record shows this notice was issued and served; that the defendants in that suit never appeared at said time, nor have they ever filed a motion to dissolve the temporary injunction, nor any answer in the case, and no further steps have ever been taken in the case until upon information filed this relator and Mr. Zuccaro were cited to appear and show cause why they should not be held in contempt of court for violating this injunction.

Relator’s able counsel admit the shows were opened on Sunday, but say that the district court of Tarrant county was without authority or jurisdiction to order the injunction to issue, and the order was therefore a nullity; that if mistaken in this, temporary injunction was not a continuing order, and when hearing was set on February 3d, and no hearing had, it was vacated and no longer in force. On these two issues, and these two alone, relator’s counsel contended they were entitled to have us issue the writ of habeas corpus and discharge them on final hearing. The state was also ably represented on the hearing, and contended that the district court did have the authority, power, and jurisdiction to issue the writ, and its order was not void; that the temporary injunction issued was a continuing one, and remains in force until vacated by order of the court granting it.

Without entering into a discussion of the merits of these two propositions, we are met at the threshold with the grave proposition, even if relator is entitled to relief, to which court should the application for a writ of habeas corpus be presented — to this court or the Supreme Court? They • are both courts of final jurisdiction, in matters in which they have any jurisdiction, and from the action of either no appeal will lie. If we assume jurisdiction, and order the writ to issue, it should be a finality whatever order we might make, and if the Supreme Court should entertain jurisdiction and order the writ to issue, likewise its orders should be a final disposition of the matter. In the case of Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684, this court entertained jurisdiction in this character of case and held that the district court, under a statute specifically authorizing it, had authority to enjoin persons from operating gaming houses. This opinion was rendered November 15, 1905. Mr. Allison, not being satisfied with the decision of this court when rendered, sued out a second writ, which was granted by the Supreme Court, and their opinion was handed down February 1, 1906. Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. It is thus seen that both this court and the Supreme Court have entertained jurisdiction and issued the writ of habeas corpus in this character of case, and in that case the Supreme Court and this court both issued a writ in the same case and passed on the same facts, and both upheld the law. Had they not arrived at the same conclusion, there would have occurred one of those conflicts that in the past have marred the jurisprudence of our state. This condition should be avoided whenever it is in the power of the courts to do so, and either this court’s order or the order of the Supreme Court should be a finality.

Our whole judicial system is built upon the principle that the Supreme Court should have final and absolute jurisdiction in all civil cases, and this court should have final and absolute jurisdiction in all criminal cases, and if this true dividing line be at all times kept in mind, we do not think that a conflict in jurisdiction, nor in the opinions of the courts, can or should arise again. Without passing on the question whether or not we have the authority under the Constitution to issue the writ, we go to the question, Is it the policy of the law of this state that we do issue it? To decline to do so deprives relator of no right, for he can at once apply to the Supreme Court for a writ. There are many reasons that arise in our mind why the application should be made to the Supreme Court and not to this court. If we entertain jurisdiction, and we held that the district judge had no jurisdiction, we could only discharge this relator, and could make no other order. Should the Supreme Court grant the writ and entertain that view, it could not only discharge this relator, but by mandamus compel the vacating of the temporary injunction, and thus finally determine the question, releasing some ten or a dozen defendants, and save each from suing out writs of habeas corpus. We could not do so, and if, on the other hand, we held that the court had authority to issue the writ of injunction, and should remand the relator, he could at once move to dissolve the injunction, and if the court refused to do so, he could at once appeal, and this appeal could never, under any circumstances, come to this court, but would go to the Supreme Court for final adjudication, and its decision should and would be final in the premises, and binding on all courts of this state, while our opinion in the premises, as is thus shown, would not be final. We have no civil jurisdiction.

By the Constitution of 1876 the Supreme Court was not granted authority to issue the writ of habeas corpus. By the terms of that Constitution this court alone was granted authority to issue this writ. Sections 3, 6, art. 5, Const. 1876. In 1891 the Constitution was amended, and in section 3 of article 5 the Supreme Court was granted specific authority to “issue writs of habeas corpus as may be prescribed by law,” and the civil jurisdiction this court had entertained theretofore under the Constitution of 1876 was taken from it. See section 6, art. 5, Const. 1876, and section 6, art. 5, Const., as amended in 1891. Erom that date to this it was not contemplated that this court should entertain jurisdiction in any civil matter, and in their granting the Supreme Court the power to issue the writ of habeas corpus, in our opinion it was contemplated and intended that, when an application for a habeas corpus grew out of a civil suit, the Supreme Court should entertain jurisdiction of the matter. And as evidence that this was what the Constitution intended, the Legislature later adopted article 1529, Rev. Civ. St. 1911, wherein it was specifically provided that the Supreme Court shall have the power to issue writs of habeas corpus in all cases where any person is restrained of his liberty by virtue of any order, process, or commitment issued by any court or judge on account of any order, judgment, or decree theretofore made, rendered, or entered in any civil cause, thus in specific terms giving the Supreme Court jurisdiction in eases of this character.

That a suit brought to enjoin one from doing any act or thing we think will be conceded by all to be a civil suit. An appeal lies to the civil appellate branch, and not to this court. That the suit instituted in the district court of Tarrant county for a writ of injunction was a civil case will, we do not think, be questioned; that the order made by Judge Simmons was in this civil suit is certain, and it is equally certain that relator is restrained of his liberty by virtue of an alleged violation of this order and an order made in that case. To our mind, taking into consideration our Constitution, and the amendment thereto, the act of the Legislature, in pursuance of this amendment to the Constitution, quoted above, it was the clear intent and purpose that in this character of case the application for a writ of habeas corpus should be addressed to the Supreme Court, and not to this court. Its action will be final, and will finally determine the question of whether or not the civil courts have jurisdiction to entertain suits and enjoin in cases of this character where specific authority to do so has not been conferred on them by the Legislature. Any expression we might give upon that question would not bind the Supreme Court, while it would be the duty of all courts to abide the opinion of the Supreme Court in the premises, and it would be our pleasure to respect it as the opinion of the court having final jurisdiction in the matter.

We have held that the opening of shows of the character mentioned in plaintiffs petition was a violation of the Sunday law, and we adhere to that opinion, and we are sure that the Supreme Court will and does appreciate the fact that our decision should be final in that matter. But whether or not they can be enjoined from opening on the Sabbath involves a construction of the jurisdiction of district courts in civil matters, and thus under the law they are made the final arbiters, and we and all others should and will bow to their opinion.

Being of this opinion, the application to this court for a writ of habeas corpus is denied, but in so ordering it is done without prejudice to the right of relator to apply to the Supreme Court for a writ This much is said on account of the opinion of the majority of the court in Ex parte Allison, supra, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653, wherein it was stated if this court had granted and acted on the writ, the relator might not be entitled to a second writ, that court thereby recognizing the concurrent jurisdiction in the premises, but we think, as a matter of policy both courts should not exercise it in this character of cases, and only in extreme cases would we feel called upon to issue the writ in any case where by law the matter should properly go to the Supreme Court for final review in the ordinary course of court procedure.

The application is refused.

DAVIDSON, J.

The Constitution authorizes and empowers this court to grant writs of habeas corpus. This duty this court cannot legally evade. That the Supreme Court may, in certain cases, also grant such writs does not, in any way, withdraw our jurisdiction. The Supreme Court, in my opinion, has power to grant the writ in this case but we have heard the application, and ought not to dismiss the application.


text:
    SUESBERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Criminal Law (§ 921) — Reception oe Evidence-Objections and Exceptions.
    Where no objection was made to the introduction of testimony or bills of exception reserved at the time of its introduction or during the trial of the case, it was too late to object after verdict in the motion for a new trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2206-2209; Dec. Dig. § 921.]
    2. Criminal Law (§ 1137) — Appeal—Review —Invited Error.
    It was not error, of which accused could complain, that special charges requested by him were given, as the error, if any, was invited by him.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    3. Criminal Law (§ 954) — Motion por New Triai^-Specipioation op Errors.
    A motion for a new trial, on the ground that the court erred in refusing special charges specified as requested by accused, was too general to be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    On Motion for Rehearing.
    4. Criminal Law (§ 1083) — Appeal—Record —Amendment.
    Where the overruling of an amended motion for a new trial appeared only on the motion docket and was not carried into the minutes of the court, the court could not, after the adjournment of the term, and while an appeal was pending, enter nunc pro tune an order overruling such motion.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.]
    5. Criminal Law (§ 1086) — Appeal—Reservation op Grounds op Review — Motion por New Trial.
    A motion for a new trial, in a criminal case, could not be considered on appeal where the only record indicating that it was overruled was the entry on the motion docket.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    Appeal from Criminal District Court, Harris County; Sam’l J. Styles, Judge.
    Charles Suesberry was convicted of manslaughter, and he appeals.
    Affirmed.
    J. M. Gibson and W. W. Wander, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      Eor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant on this trial was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary.

The first two grounds in the motion for a new trial complain of the action of the court in admitting the testimony of the vvit-nesses E. B. Sisk and John Price. As no bills of exception were reserved to the introduction of the testimony of these witnesses, the record does not disclose that this testimony was objected to at the time of its introduction, nor during the trial of the case, and after verdict it is too late to object to the introduction of testimony admitted on the trial of the case.

The third ground of the motion for a new trial reads as follows: “The court erred in giving special charges 1, 2, 3, 4, as requested by the defendant.” Of course the court would not err in giving a special charge requested by the person on trial, for, if error there be in giving such charge, it would be error invited by defendant in. requesting such instruction. However, while the motion for a new trial reads as indicated above, yet the record discloses that such special charges were not in fact given but were marked “refused” by the court, and the question arises: Is the objection too general to be considered? In this ground of the motion there can be no doubt that the exception is too general to be considered. However, the next ground in the motion complains that the court erred in failing to “charge the jury that, if they believed that septic poison was introduced into the wound by the cloth sweater or towel placed there by the witness Price after the cutting, they should acquit the defendant of the charge of murder or manslaughter.” The court did in fact so charge the jury in paragraphs 14 and 15 of the charge. These are all the grounds alleged in the motion for a new trial, which was overruled by the court. After the motion for a new trial had been overruled by the court, what is termed “an amended motion for a new trial” was filed without leave of the court to do so being obtained, and which was never acted on by the trial court. Under such circumstances the amended motion for a new trial cannot be considered by us.

The judgment is affirmed.

On Motion for Rehearing.

Appellant files a motion for a ’rehearing in which he has the clerk to certify the “motion docket” shows that leave was granted to file an amended motion for a new trial, and that same was overruled by the court; the certificate reading: “I, Max Andrews, clerk of the criminal district court of Harris county, Tex., do hereby certify that the foregoing is a true and correct copy of the original entry as it appears on the motion docket of the criminal district court of Harris county.” This term of court adjourned on the 3d day of May, 1913, and no order or judgment was entered in the minutes of this court, but, since the original opinion was rendered by this court, counsel for appellant has prevailed on the court to attempt to make a nunc pro tune order; the order, reciting that: “Whereas the order of the court made on the 26th day of April, 1913, and the minutes of the court fail to show that the court overruled said amended motion for a new trial, it is now ordered and adjudged that this order be entered in the minutes of the court nune pro tunc, now for then, as it was the original order intended to be entered on the minutes of said court.”

The question arises: Oan the court order this judgment entered nunc pro tunc, without notice to a person, while the case is pending in this court? In the case of Long v. State, S Tex. App. 321, it was said: “The notice of appeal * * * was not entered of record, though, the clerk certifies that the notes made by the judge upon his docket show that defendant did give notice of appeal. The entries on the judge’s docket will not supply the place of, or supersede the necessity for, an entry upon the record.” Lawrence v. State, 14 Tex. 432; Hughes v. State, 33 Tex. 683. This has always been the rule in this court, that the entry or order to be of any force and effect must be carried forward into the minutes of the court; and, where the entry was not made in the minutes at the term of court, no nune pro tune entry or order can be made while .the ease is pending in this court on appeal. In the case of Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982, this court, speaking through Judge Davidson, said: “Appellant was convicted i:* * * at the September term, 1896. ⅜ * * He filed a motion for a new trial, which was overruled, and gave notice of appeal. The judgment was not entered at that term of the court, but was entered nune pro tunc at the March term, 1897. * * * Under this state of case, the court below had lost authority to enter judgment at the March term, 1897. When the September term, 1896, closed, the notice of appeal having been given, jurisdiction had attached to this court. The judgment was not a lost or destroyed part of the record, and therefore could not be entered pending the appeal; that court having lost jurisdiction” — citing Lewis v. State, 34 Tex. Cr. R. 126, 29 S. W. 384, 774, 30 S. W. 231; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668. This has not only been the rule in this court, but the Code of our state so provides.

Thus it is the entry on the motion docket, but not carried into the minutes of the court, and cannot be considered by this court, and the trial court had no authority nor power to enter the nunc pro tunc order in December when the term of court at which the appellant was tried adjourned in May previous, and notice of appeal given at that term. It is strange to us that attorneys will not give care, consideration, and attention to seeing that the judgments and orders are entered in criminal that they do in civil cases; but, so long as they are negligent in this respect, we are powerless to aid them until the Legislature changes the law.

The motion for rehearing is overruled.