author: HARPER, J.

text:
    LANE v. STATE.
    (No. 4201.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law <@=j872i4 — Verdict by Less Than Twelve Jurors — Misdemeanor Case.
    In a prosecution for a misdemeanor, where a jury of twelve was selected, impaneled, and sworn to try the case, and none of them were discharged or excused for any cause before rendition of the verdict of guilty, which was signed by only nipe, three jurors failing and refusing to join therein, judgment of conviction could not stand.
    [Ed. Note. — Eor other cases, see Criminal Law, Dec. Dig. @=>872%.]
    Appeal from Criminal District Court, Dallas County; Robt B. Seay, Judge.

      Jack Lane was convicted of the use of i abusive language, and he appeals.
    Judgment reversed, and cause remanded.
    Harmon & Harmon, of Dallas, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was tried under an information containing three counts, one charging aggravated assault, one simple assault, and the other abusive language. The court committed no error in overruling the motion to quash the information. Appellant was convicted under the count charging him with the use of abusive language, and his punishment assessed at a fine of $30.

Several questions are raised, but we do not deem it necessary to discuss but one of them. This is a misdemeanor, tried in the criminal district court of Dallas county. A jury of twelve men were selected, impaneled, and sworn to try th'e ease. None of them were discharged or excused for any cause before rendition of the verdict. The verdict was signed by but nine of the jurors, three failing and refusing to join in the verdict of guilty. Appellant reserved a bill to the reception of this verdict, he contending that it must be joined in by all the jurors impaneled, and not discharged or excused. This question is discussed and decided in the case of Ren-fro v. State, 189 S. W. 137, No. 4'176, this day handed down, and in accordance with the opinion there rendered, this case must be reversed.

The judgment is reversed, and the cause remanded.
      <g=»For other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    CORTONELIA v. STATE.
    (No. 4202.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law @=>872% — Vekdict by Less Than Twelve Jurors — Misdemeanor Case.
    In a prosecution for a misdemeanor, where a regular jury of twelve was impaneled, but nine only found a verdict of guilty, the other three refusing to concur, none of them having been in any way discharged by the judge before verdict for any reason', judgment of conviction could not stand.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. @=>872%.]
    Appeal from Criminal District Court, Dallas County; Robt.' B. Seay, Judge.
    John Cortonelia was convicted of an aggravated assault, and he appeals.
    Judgment reversed, and cause remanded.
    W. W. Nelms, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an aggravated assault and fined $25.

The charge was a misdemeanor. The criminal district courts of Dallas county, under an Act of Legislature (Acts 1915, c. 35, § i) are given jurisdiction to try misdemeanor cases. A regular jury of 12 men was impaneled. Nine only found a verdict. The other three refused to concur in the verdict, and, it seems, may have wanted to find the defendant not guilty. Neither of these three were in any way discharged by the judge before the verdict for any reason. The appellant objected to the judge receiving the verdict of the nine jurors only. Notwithstanding this, the judge did receive it, and thereupon entered the judgment of conviction. This was error.

This is a companion case to that of No. 41-76, Salty Renfro v. State, 189 S. W. 137, and No. 4201, Jack Lane v. State, 189 S. W. 138, this day decided on appeal from the same district court. It is unnecessary to here again discuss the question. On the authority of the opinions in those eases, the judgment is reversed, and the cause remanded.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENiDERGAST, P. J.

text:
    THOMAS v. STATE.
    (No. 4171.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.
    Rehearing Denied Nov. 8, 1916.)
    1. Criminal Law @=>603(7) — Absence of Witnesses — Continuance.
    In a trial for murder, where several disinterested witnesses on each side who saw the difficulty and the killing were introduced, but defendant’s son and another eyewitness present in court were not offered, and defendant himself did not testify, his application for a continuance on the ground of the absence of a witness who saw the killing and deceased advancing in a threatening manner upon defendant, and defendant retreating, and who would testify that deceased was the aggressor, and of another witness expected to ■ show that deceased had more than once threatened defendant with serious bodily harm, and of another witness who saw the difficulty and heard deceased threaten to “fix defendant,” not attaching the affidavit of either of such witnesses as to what they would testify, or showing any reason for not doing so, in view of the improbability that such witnesses would testify as alleged, was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1354; Dec. Dig. @=>603(7).]
    2. Criminal Law @=*594(1) — Appeal—Continuance — 'Waiver.
    Where defendant declined to postpone the conclusion of the trial until the arrival of one of such witnesses, and did not ask that the jury hear the testimony of such witness stated by him to the trial judge, he waived any right to have such witness testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. @=>594(1).]
    3. Criminal Law @=>586 — Discretion of Court — Continuance.
    Under the statute and the decisions, the first continuance is addressed to the sound discretion of the court, and “shall not be granted as a matter of right.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig.- @=>586.]
    4. Criminal Law @=>961 — New Trial — Grounds — Absence of Witnesses.
    The court, after hearing the whole trial and all the evidence, on a motion for mew trial, must reconsider the motion for a continuance, and if he then concludes that the testimony of the absent witnesses was not material or that their claimed testimony was not probably true, may properly refuse the new trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2415 — 2417; Dee. Dig. ©=» 961.]
    5. Criminal Law ©=>595(4), 917(2) — Appeal— Discretion of Trial Court — Continuance.
    The court, on appeal, will not revise or reverse the judgment of the lower court refusing a continuance, and the overruling of a motion for a new trial based thereon, unless it appears from the evidence at the trial that the testimony of such absent witnesses was relevant, material, and probably true.
    [Éd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323, 2162; Dec. Dig. ©=>595(4), 917(2).]
    6. Criminal Law ©=>597(1) — Appeal—Continuance.
    The court, on appeal, .will not reverse for the refusal of a continuance, unless, in connection with the other evidence on the trial, it is convinced not merely that defendant might probably have been prejudiced thereby, but that it was reasonably probable that if the testimony of absent witnesses had been given, a more favorable verdict for defendant would have resulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1331; Dec. Dig. ©=>597(1).]
    Appeal from District Court, Young County ; Wm. N. Bonner, Judge.
    J. B. Thomas was convicted of manslaughter, and he appeals.
    Affirmed.
    M. D. Brown, of New Castle, and Kay & Alrin, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENiDERGAST, P. J.

Upon a trial under an indictment for murder, appellant was convicted of manslaughter, and assessed the lowest punishment.

We think the evidence as a whole, and especially that of appellant’s witness Estell Morrison, a little girl 10 years of age, raised the issue of mutual combat, and that the court did not err in submitting that issue. We see no necessity of making a statement of the testimony. It is amply sufficient to sustain the conviction.

The only bill of exceptions appellant has in the record is to the overruling of his motion for a icontinuance. His application therefor was on account of the absence of J. A. Davis and Robert Tunnel of Runnels county, and W. F. Banning of Tar-rant county. He alleged that Davis saw the killing, and saw the deceased advancing in an angry and threatening manner upon him, and that he was retreating and had been retreating up to and at the instant of the killing, and that he will testify to facts showing that deceased was the aggressor. By the witness Tunnel he claimed he expected to establish that deceased on more than one occasion had threatened defendant with serious bodily injury; by Banning, that he saw the difficulty and heard deceased say to appellant in his presence and hearing and just before the killing: “Damn you, I will just fix you now.”

The ■ record shows that there were introduced several wholly disinterested and unbiased witnesses on each side who saw the difficulty and killing — some of them right at the parties. It also shows that appellant had had subpoenaed, and there were in attendance upon the court during the trial his own son, a young boy ¡about 17 or 18 years old, and John Stone, both of whom were eyewitnesses to the fight and killing, but introduced neither of them. He did not himself testify. That before the judge overruled his motion for a continuance, the judge by phone communicated with the sheriff of Runnels county and learned "from him'that he had subpmnaed said Davis, and that Davis was on his way to attend the trial, and would reach there that night. That the witness Tunnel was sick and could not attend. That on the day of the trial, before it was concluded, the judge informed the appellant and his attorneys that the witness Davis would arrive in time to testify the next morning, and offered to postpone the conclusion of the trial until his arrival, so that he could testify, but appellant did not agree to this; so that the trial proceeded and went to the jury late that evening. That on the next morning the witness Davis appeared in court, whereupon while the jury was out and before it returned a verdict, the witness was summoned before the court to ascertain what his testimony would be. Appellant did not then ask that the jury be permitted to hear the witness’ testimony. In the court’s qualification to appellant’s bill, he attaches in question and answer form the statement of the testimony of said Davis heard at the time. In our opinion, as in the opinion of the trial judge, this did not bear out what appellant alleged in his motion he would testify. The court also states in this qualification, which is a fact as shown by the record, that no one testified to any threat of any kind having been made, and there was no intimation of any threat from any source. The witness Lanning was not procured, nor in any way heard from, so far as this record shows. The trial was had and the verdict and judgment rendered March 15th. Appellant filed a motion for a new trial on the same day, and an amended motion on March 20th. The state contested his motion on the ground of the overruling of his motion for a continuance, and the court heard and overruled it on March 30th. At no time did appellant attach the affidavit of either of said absent witnesses or show any reason why he did not do so, showing what they would testify.

Under the circumstances, the court did not err in overruling his motion for a continuance, nor, in overruling his motion for a new trial. Under the circumstances, he clearly waived any right to have said witness Davis testify. It is altogether improbable that the witness Tunnel would have testified to any threat, but, if so, the application does not show when and where nor under what circumstances the claimed threat was made, nor that it was communicated to appellant before he killed deceased! or that he knew anything about it, or that he had ever heard of it, nor that whatever the threat was, deceased did or said anything at the time to indicate that he was then attempting to execute any supposed threat. No intimation by any of the other eyewitnesses to the whole fight and killing indicated that deceased at the time said to appellant, “Damn you, I will just fix you now,” as it is claimed the absent witness Lanning would have testified. It is altogether improbable that he would have so testified. If such had been a fact, it seems that appellant would have introduced his son or witness Stone, or both, to have testified to the same.

It is the well-settled law of this state, both by statute and the decisions, that the first continuance is addressed to the sound discretion of the court, “and shall not be granted as a matter of right.” Then that the court, after hearing the whole trial and all the evidence on a motion for a new trial, shall reconsider the matter, and if he thereupon concludes that the evidence of the absent witnesses was not of a material character, or that their claimed testimony was not probably true, then he commits no error in refusing a new trial.

Judge White in his An. O. O. P. § 647, lays down the correct rule as follows:

“The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the. motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. Koller v. State, 36 Tex. Cr. R. 496 [38 S. W. 44]; Lindsey v. State, 35 Tex. Cr. R. 164 [32 S. W. 768]; Moseley v. State, 35 Tex. Cr. R. 210 [32 S. W. 1042]; Tate v. State, 35 Tex. Cr. R. 231 [33 S. W. 121]; McGrath v. State, 35 Tex. Cr. R. 413 [34 S. W. 127, 941]; Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Waul v. State, 33 Tex. Cr. R. 228 [26 S. W. 199]; King v. State, 34 Tex. Cr. R. 228 [29 S. W. 1086]; Cline v. State, 34 Tex. Cr. R. 415 [31 S. W. 175]; Wyley v. State, 34 Tex. Cr. R. 514 [31 S. W. 393]; Neel v. State, 33 Tex. Cr. R. 408 [26 S. W. 726]; Russell v. State, 33 Tex. Cr. R 424 [26 S. W. 990]; Shaw v. State, 32 Tex. Cr. R. 155 [22 S. W. 588]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Brookin v. State, 26 [Tex.] App. 121 [9 S. W. 735]; Browning v. State, 26 [Tex.] App. 432 [9 S. W. 770]; Boyett v. State, 26 [Tex.] App. 689 [9 S. W. 275]; Brooks v. State, 24 [Tex.] App. 274 [5 S. W. 852]; Jackson v. State, 23 [Tex.] App. 183 [5 S. W. 371]; Hennessy v. State, 23 [Tex.] App. 340 [5 S. W. 215]; Covey v. State, 23 [Tex.] App. 388 [5 S. W. 283]; Rice v. State, 22 [Tex.] App. 654 [3 S. W. 791]; Miller v. State, 18 [Tex.] App. 232; Mathews v. State, 17 [Tex.] App. 472; Beatey v. State, 16 [Tex.] App. 421; Wooldridge v. State, 13 [Tex.] App. 443 [44 Am. Rep. 708]; Word v. State, 12 [Tex.] App. 174; Clampitt v. State, 9 [Tex.] App. 27; Dowdy v. State, 9 [Tex.] App. 292.”

In the next subdivision, he also lays down another correct rule as follows:

“The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance, unless in connection with the other evidence adduced on the trial they are impressed with the conviction not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex. Cr. R 330 [30 S. W. 788]; Gallagher v. State, 34 Tex. Cr. R. 306 [30 S. W. 557]; Easterwood v. State, 34 Tex. Cr. R. 400 [31 S. W. 294]; Sinclair v. State, 34 Tex. Cr. R. 453 [30 S. W. 1070]; Bluman v. State, 33 Tex. Cr. R. 43 [21 S. W. 1027, 26 S. W. 75]; Goldsmith v. State, 32 Tex. Cr. R. 112 [22 S. W. 405]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Hammond v. State, 28 [Tex.] App. 413 [13 S. W. 605]; Frizzell v. State, 30 [Tex.] App. 42 [16 S. W. 751]; Pruitt v. State, 30 [Tex.] App. 156 [16 S. W. 773]; Ellis v. State, 30 [Tex.] App. 601 [18 S. W. 139]; Browning v. State, 26 [Tex.] App. 432 [9 S. W. 770]; Boyett v. State, 26 [Tex.] App. 689 [9 S. W. 275]; Covey v. State, 23 [Tex.] App. 388 [5 S. W. 283]; Self v. State, 28 [Tex.] App. 398 [13 S. W. 602]; Phelps v. State, 15 [Tex.] App. 45.”

See, also, on both propositions, Furnace v. State, 182 S. W. 457; Stacy v. State, 177 S. W. 118.

There is no other question raised in such a way that we can consider it.

The judgment is affirmed.
      ,©=>17or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    TAYLOR v. STATE.
    (No. 4243.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Bail @=»70 — Bond and Recognizance — Time jtob Filing.
    Where accused filed appeal bond with the sheriff in term time, the appeal will be dismissed, since in no event can appeal bond be taken in term time; a recognizance being necessary.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 287; Dec. Dig. <§=>70.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    J. H. Taylor was convicted of violating the local option law, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State. •
   DAVIDSON, J.

Appellant was convicted of violating the local option law, his punishment being assessed at one year’s confinement in the penitentiary.

Appellant, after giving notice of appeal, entered into an appeal bond during term time, and did not go before the court and enter into a recognizance. Court adjourned on the 27th day of July, 1916, and the appeal bond was filed on July 11, 1916, sixteen days before court adjourned. The appeal bond was approved only by the sheriff, and not with the additional approval of the trial judge, but in no event can an appeal bond be taken in term time when an appeal is consummated to this court. There must be a recognizance.

The appeal will be dismissed.
      ©^cForother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TAYLOR v. STATE.
    (No. 4235.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Bail <g==>70 — Bond and Recognizance ■— Tuns hoe Filing.
    Where accused filed appeal bond with the sheriff in term time, the appeal would be dismissed, since in no event can appeal bond be taken in term time; a recognizance being necessary.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 287; Dec. Dig. <@=70.] -
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    J. H. Taylor was convicted of cattle theft, and he appeals.
    Appeal dismissed.
    R. P. Dorough, of Texarkana, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

This appeal must be dismissed, because appellant gave an appeal bond to this court instead of a recognizance; the instrument being entered into during term time. The court adjourned on the 27th day of July, 1916. The bond for the appeal to this court was entered into and approved on July 11, 1916. It is a bond taken and approved by the sheriff, and not a recognizance as required by the statute. During term time a recognizance must be taken, in vacation an appeal bond.

The appeal is dismissed.


text:
    PARITA v. STATE.
    (No. 4224.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Intoxicating Liquors <§=236(11) — Offense —Sufficiency of Evidence.
    In a prosecution for violating the local option law, where the state’s witness testified to a sale of intoxicating liquor, which was denied by defendant, whose denial was supported by the testimony of a certain witness, the Court of Criminal Appeals will not reverse for insufficiency of the evidence to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ '313-315; Dec. Dig. <@= 236(11).]
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Manuel Parita was convicted of violating the local option law, and he appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at two years and six months confinement in the penitentiary.

The only question presented is the sufficiency of the facts. The state’s witness Skipper swears to a sale of intoxicating liquor. This is denied by defendant, and he is supported by the testimony of a witness named Guest. Without discussing the examination and cross-examination of witnesses, the jury saw proper to believe the evidence for the state, and we would hardly be prepared to say it is not sufficient; at least, that the jury was authorized in reaching the conclusion they did reach.

There being nothing else in the record to consider, the judgment will be affirmed.-
      <i=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BANKSTON v. STATE.
    (No. 4242.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Criminal Law <@=1091(10) — Appeal — Bills of Exceptions.
    Bills of exceptions relating to remarks of the court to a witness for the defendant on her cross-examination, merely stating that the defendant objected, without stating any ground of objection, were insufficient to present any question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2831; Dec. Dig. <@=1091(10).]
    2. Witnesses <@=225 — Examination — Requiring Answer.
    Where a witness was captious and refused to answer questions by giving evasive argumentative answers, the court had the right to require her to answer the questions propounded.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 789; Dec. Dig. <@=225.]
    Appeal from District Court, Wharton County; W. C. Carpenter, Special Judge.
    Porter Bankston was convicted of manslaughter and he appeals.
    Affirmed.
    See, also, 175 S'. W. 1068.
    H. A. Cline, of Wharton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There are but two bills of exception in the record, and they both relate to remarks made by the court to Florence Hill, a witness for defendant, while she was being cross-examined by the state’s attorney. In both bills it is merely stated the defendant objected, no grounds of objection being stated. The bills are wholly insufficient to present any question for review, but take the examination of the witness and it shows, instead of answering the questions propounded to her, she was arguing with the district attorney, and the court told her not to argue, but to answer the questions propounded, and' if she did not he would send her to jail. Again, when the district attorney was asking the witness how far it was from a certain house to the buggy shed, the court remarked this distance was in evidence. The district attorney remarked it was a disputed question, when the court remarked: “I don’t think you can establish it by her; she don’t know which end she stands on.” If the bills were full and complete in every respect to present the question that perhaps these remarks were such as to discredit the witness with the jury, that being the only objection that could be made, the remarks would not call for a reversal of the case.

It is apparent the witness was captious, refusing to answer questions by giving evasive and argumentative answers, and under such circumstances the court has the right to require a witness to answer the questions propounded. In the statement of facts the testimony of this witness is in question and answer form, and we will here say that the action of the court was fully warranted by the conduct of. the witness.

The only other question raised is as to the sufficiency of the evidence. A short synopsis of the testimony was given in the opinion on the former appeal in this case, reported in 175 S. W. 1068, and we do not deem it necessary to do so again. In our opinion the evidence is sufficient, and would support a verdict of a higher grade of offense.

The judgment is affirmed.


text:
    GOOSBY v. STATE.
    (No. 4178.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <@=>814(1) — Instructions — Conformity to Information.
    Under information charging that accused, being the owner of a house, knowingly permitted it to be used for prostitution, instruction permitting conviction if accused knowingly permitted the house so to be used is erroneous for failure to conform to the allegation that he owned the house.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 19S0; Dec. Dig. <@=> 814(1).]
    2. Criminal Law <@=>402(1) — Evidence—Admissibility — Preliminary Proof.
    In a prosecution for knowingly permitting a house to be used’ for prostitution, it is not a proper predicate for oral testimony that an inmate pleaded guilty to vagrancy, and accused to disturbing the peace, for a witness to say that, he did not know where the complaint was, that he had not looked for it, and that in case of plea of guilty the complaint was usually destroyed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §' 887; Dec. Dig. <@=>402(1).]
    3. Disorderly House <@=>16 — Evidence—Admissibility.
    . Testimony that an inmate pleaded guilty to vagrancy is not admissible, unless it be shown that prostitution was the basis of the vagrancy ■charge.
    [Ed. Note. — For other eases, see Disorderly House, Cent. Dig. §§ 21-25; Dee. Dig. <@=>16.]
    4. Criminal Law <@=>869(1) — Evidence—Admissibility.
    Testimony that accused pleaded guilty to disturbing the p^ace is not admissible in the absence of proof of connection of such offense with that charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. <@=>369(1).]
    5. Disorderly House <@=>16 — Evidence—Admissibility — Reputation. ’
    The state could not show on direct examination who the persons were who told witnesses of the bad reputation of the house.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. <@=>16.]
    Appeal from Johnson County Court; B. Jay Jackson, 'Judge.
    J. T. Goosby was convicted of an offense, and he appeals.
    Reversed and remanded.
    W. B. Featherston and J. O. Lockett, both of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The charging part of the information is that, from the 1st day of June, 1915, and on each successive day from that date to the 80th day of July, 1915, appellant was then and there the owner of a certain house, and did then and there unlawfully and knowingly permit said house to be kept as a house for purposes of prostitution, and1 where prostitutes were permitted to resort and reside for the purpose of plying their vocation. , >

The evidence for the state is that Hays and his family had rented the house in question, and had Mrs. Raney there as nurse to wait on his wife, who was soon expected to be confined; that Hays and his family moved into the house' along about , the 1st of June, and vacated it about the Sd' of August. The state introduced evidence of the general bad reputation of the house, and that appellant had been seen going there on several ."occasions and coming away, and on one occasion officers went to the house, and Mrs.. Raney", was seén in a room of the house and appel; lant leaving the room’ buttoning' his 'pant's. There is evidence for the state that on one or two occasions other women were there, and they were somewhat hilarious'; some, of them were out. in the yard not fully dressed. The evidence for the defendant is to the effect that Hays had rented' the house, and' that Mrs. Raney was an inmate of thé hoüsé in the capacity of nurse for his wife, who was shortly expected to be confined. Hays and his wife testified there was no disorderly conduct or lewdness carried on in the house, and that on the occasion of the officers’ visit to the house, when it was stated appellant was seen’ coming out of the door buttoning his breeches, Hays was sleeping. on the front gallery. He testified, as did Mrs. Hays, that there was no lewdness carried on in the house, ’ and' that the house was under their control. " This is the' substance of the case. The first clause of the court’s charge states, generally, that the information charges appellant with knowingly permitting a disorderly house to be kept in Johnson county, on or about the 1st day of June, 1915, and on each successive day from that date to July 80, 1915. The second and third clauses of the charge copies two statutes with reference to disorderly and bawdy houses, and sets out all specified grounds of the statute; and the fourth clause charges that:

• “Any room or part of a building or other place appropriated or used for either of the above purposes enumerated is a disorderly house.”

The following is the court’s charge submitting the issue to the jury: l

“Now, bearing in mind the above and foregoing definition and instruction, if you believe from the evidence beyond a reasonable doubt that defendant Goosby did unlawfully and knowingly permit - to be kept as a house for purposes of prostitution, and where a prostitute or prostitutes were permitted to resort and reside for the purposes of plying their vocation, then in that event you will find the defendant guilty as charged in the information, and assess his punishment at a fine of $200, and by confinement in the county jatl for 20 days for each day he permitted, if you find he did, said house to be kept as a disorderly house.”

In the definition of the offense the court gave the following:

“Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping or aid or assist or abet in keeping a disorderly house, in any house, building, edifice or tenement owned, leased, occupied or controlled by him directly or as agent for another, or through any agent, shall be deemed guilty of keeping or being concerned in keeping or knowingly permitting to be kept, a disorderly house.”

Then the definition is given, as set out in the statute, that a disorderly house is defined to be any assignation house, or any theater, playhouse, or house where spirituous, vinous, or malt liquors are kept for sale, and prostitutes, lewd women, or women of bad reputation for chastity are employed, kept in service, or permitted to display or conduct themselves in a lewd, lascivious, or indecent manner; or to which persons resort for the purpose of smoking or in any manner using opium, and so on.

Looking at these phases of the charge and the application of them by the court, it will be readily discovered that the court authorized the conviction of appellant for any and all of the clauses therein defined, for he says:

“Now, bearing in mind the above and foregoing definition and instruction, if you believe from the evidence beyond a reasonable doubt that defendant Goosby did unlawfully and knowingly permit to be kept as a house for purposes of prostitution, and where a prostitute or prostitutes were permitted to resort,” etc., find the defendant guilty.

It is a fundamental proposition that in submitting the law of a case authorizing a conviction, the charge must conform to the allegations in the information or the indictment, and the evidence introduced supporting such allegations. Appellant was charged as the owner of the house, and that he permitted such house to be kept for the purposes of prostitution, and where prostitutes were permitted to resort and reside for the purposes of plying their vocation. In order to properly submit this case to the jury the court must confine his charge to the allegations that appellant was the owner of the house, and permitted prohibited conduct. The court authorizes a conviction without confining the jury to the alleged fact that appellant was the owner of the house. Exception was promptly taken, and special requested instructions refused. The court was in error in both instances.

Another question is presented. Appellant Objected to verbal testimony to the effect that Mrs. Raney had pleaded guilty to vagrancy on the 29th day of July, and that appellant pleaded guilty to disturbing the peace on that day. Exception was reserved and overruled. Among other things, it is urged that if the evidence was introducible, the complaint and information was the best evidence as to the fact that she was charged with vagrancy, and what part of statute was violated. Witness testified that he did not know where the complaint was; that he had not looked for it. And he further testified that in pleas of guilty they usually destroyed these pleadings. This was not a proper predicate for the introduction of the oral testimony. See Bowman v. State, 73 Tex. Cr. R. 194, 164 S. W. 846. There is nothing to show, as we understand this record, that Mrs. Raney was then living in this house, and the complaint should have been introduced to show, if it would do so, that she was charged with being a common prostitute as a basis for the vagrancy. The fact that appellant was charged with disturbing the peace would not be admissible evidence in this character of case as presented by this record. What it had to do with permitting prostitutes to reside in the house is not undertaken to be shown. This testimony should not be permitted upon another trial in the condition shown by this record.'

There is another question. A couple of state’s witnesses testified to the bad reputation of the house, and they were asked on direct examination by state’s attorney from whom they obtained such information. Each one gave the name of his informant, to the best of his recollection. Exception was reserved to this, which should have been sustained. The state is not permitted to offer this testimony in chief. The defendant may have tested the memory or credibility of these witnesses, had he seen proper to do so, by probing their means of information as a basis for their testimony for bad reputation or for their impeachment. The state cannot introduce it as original testimony in proving up its case.

For the errors indicated, the judgment is reversed, and the cause remanded.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DE ARMAN v. STATE.
    (No. 4215.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Indictment and Information <@=>7 — Special Terms of Court — Statutes.
    By Code Cr. Proc. 1911, arts. 93, 94, and Rev. St. 1911, art. 1678, the calling of special terms of the district court and the election of special judges is provided for, and an indictment, found at a special term regularly called the grand jury having been impaneled by a special judge duly selected, was valid.
    [Ed. Note. — For other ■ eases, see Indictment and Information, Cent. Dig. §§ 36-42; Dec. Dig. @=>7.]
    2. Jury @=>110(14) — Challenge to Venireman-Failure to Sustain Challenge for Cause.
    Where defendant did not exhaust all of his peremptory challenges, and no unacceptable juryman was forced on him, there was no error in requiring him to exhaust one of his peremptory challenges on a venireman as to whom the court should have sustained his challenge for cause.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 520; Dec. Dig. @=>110(14).]
    3. Jury @=>131(8) — Question to Veniremen —Death Penalty.
    In a prosecution for murder, the state’s counsel was properly permitted to ash veniremen whether, if taken as jurors, and the evidence justified it, and the law required it, they would hesitate to inflict the death penalty.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 568; Dec. Dig. @=>131(8).]
    4. Criminal Law @=>1120(3) — Appeal — Bills of Exception — Showing qf Testimony.
    Bills of exception, complaining of the court’s refusal to permit defendant to propound certain questions to a witness, should state what the witness would have answered or testified to in regard to the matters complained of.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931, 2932; Dec. Dig. .@=> 1120(3).]
    5. Witnesses @=>245 — Examination—Repetition of Testimony.
    The court properly refused to permit defendant to propound to a witness questions involving matters as to which she had already testified.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 827, 828; Dec. Dig. @=>245.]
    6. Criminal Law @=>547(3) — Evidence—Testimony at Examining Trial.
    A witness was properly permitted to state what he testified to at the examining trial; his testimony not being secondary evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1240-1245; Dec. Dig. @=> 547(3).]
    7. Witnesses @=>393(3) — Impeachment — Statement of Former Testimony.
    The written statement taken at the examining' trial could be used to impeach a witness stating what he testified to at such trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1254; Dec. Dig. @=>393(3).]
    8. Witnesses @=>396(2) — Impeachment-Evidence — Admission of Part of Statute-Prior Testimony.
    Under Code Cr. Proc. 1911, art. 811, relative to the admissibility of all of a statement bearing on a matter testified to, in a murder case, where defendant introduced part of the testimony given by a witness qn another trial for purposes of impeachment, the' state was properly permitted to introduce other portions of this testimony relating to the same matter as the portion introduced by defendant, since, when a portion of a statement or testimony is offered in evidence, all the statement bearing on the matter testified to at the same time is admissible to render the meaning clear.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1263.; Dec. Dig. @=>396(2).]
    9. Witnesses @=>412 — Corroboration—Actuality of Sickness Causing Adjournment.
    Where court adjourned on account of the illness of a witness who testified that she was ill, her cross-examination not seriously assailing or questioning her testimony on that point, the refusal to permit defendant to introduce evidence to prove that she was really sick when court adjourned was proper.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1285; Dec. Dig. @=>412.]
    10. Homicide @=>181 — Provocation — Evidence.
    Where defendant claimed to have killed deceased because of his relations with defendant’s sister, etc., contending that he killed deceased the first time he met him after learning of such matters, the court properly permitted the state to elicit from defendant’s brother on cross-examination that he had discussed the matter with defendant some three years before, and to prove by other witnesses that defendant and deceased had met on several occasions since.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385; Dee. Dig. @=>181.]
    11. Homicide @=>181 — Justification — Evidence.
    Where defendant introduced 'testimony, to make out justification, that deceased might have been the cause of his sister’s ruin, it was permissible for the state to show that, when defendant’s brother killed another brother, there was a rumor afloat that such other brother and the sister had improper relations, to show that no. improper relations existed between deceased and the sister, as between her and her brother, and that defendant knew of the matter and had discussed it with still another brother.
    [Ed. Note. — For other cases, see Homicide,. Cent. Dig. §§ 383-385; Dec. Dig. @=>181.]
    12. Witnesses @=>330(2) — Evidence — Passion or Provocation.
    In a prosecution for murder, defendant justifying on the ground that deceased had ruined his sister, where defendant introduced his brother, to show that deceased had been guilty, the court properly permitted the state to draw from such brother on cross-examination the statement that he and defendant had discussed before the killing the alleged improper relations between their other brother and sister.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1107; Dec. Dig. @=>330(2).]
    13. Homicide @=>169(1) — Evidence — Explanation of Out.
    Where the only way a cut of defendant’s was referred to by state’s witnesses was that one referred to it incidentally as fixing the time of an occurrence a year before the killing, the court properly refused to permit defendant to go into details of how he received the cut, several years, before the difficulty, being permitted to testify that he received it in an effort to separate some other parties engaged in a fight.
    [Ed. Note. — For other cases, see Homicide,. Cent. Dig. § 341; Dec. Dig. @=>169(1).]

      14. Juey <§=110(1) — Inability to Read and White—Objection after Verdict.
    Where a juror swears that he was not asked on his examination whether he could read and write, objection on that score after verdict comes too late.
    [Ed. Note.—Eor other cases, see Jury, Oent. Dig. §§ 503-505, 515; Dec. Dig. <§=>110(1).]
    15. Jury <@=>133 — Inability of Juror to Read and Write—Statute.
    Under Code Or. Proc. 1911, art. 692, subd. 14, providing that the cause for challenge to a juror that he cannot read and write shall not be sustained when the requisite number of jurors able to read and write cannot be found in the county, in a murder case, where it was not shown to the court that there were enough qualified persons residing in the county who could read and write out of whom a jury could be impaneled, the Court of Criminal Appeals is not authorized to review the action of the court in overruling motion for new trial on the ground that a juror, who could not to the court’s knowledge read and write, had been impaneled.
    [Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 586-598; Dec. Dig. <@=>133.]
    Appeal from District Court, Taylor County; B. A. Cox, Special Judge.
    Claude De Arman was convicted of murder, and lie appeals.
    Judgment affirmed.
    Ben B. Cox, of Abilene, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder and his punishment assessed at 99 years’ confinement in the penitentiary.

Shortly after the homicide, Hon. Thomas L. Blanton, judge of the district court, by order duly entered, convened a special term of the court to meet on April 27th. On that day a jury commission was duly sworn and impaneled and instructed to select a grand jury and draw petit jurors. The jury commissioners performed their duties, and the court ordered the sheriff to summon the grand jurors to appear on Monday May 1st, when the court recessed until that day. On May 1st Judge Blanton was absent, and after the sheriff had called court, the lawyers in attendance selected Hon. B. A. Cox to serve as special judge. Judge Cox took the oath required by law, and proceeded to impanel the grand jury. The grand jury thereafter returned into open court an indictment, charging appellant with the murder of Charlie Brown. Upon the return of-the indictment appellant was brought into open court, and his cause set down for trial on May 5th. A special venire was regularly drawn, and the sheriff ordered, to summon the jurors, making his return on May 4th.

When the ease was called for trial appellant filed a plea in abatement, reciting the facts as above stated, in substance, alleging that such special term was, for the reasons stated, illegal, and the indictment should be quashed. The court did not err in overruling the plea. Our laws specifically provide for the calling of special terms of the district court and the election of special judges. Articles 93,94, C. C. P., and article 1678, Rev. Civ. Stats.

Appellant in a bill of exceptions complains that the court erred in requiring him to exhaust one of his peremptory challenges on the venireman J. D. Gaither; that the court should have sustained his challenge for cause. As the record discloses that appellant did not exhaust all of his peremptory-challenges, and no juryman unacceptable to him was forced on him, this bill presents no error.

Appellant also complains that state’s counsel was permitted to ask the jurors:

“If you are taken as a juror and the evidence justifies it, and the law requires it, would you hesitate to inflict the death penalty?”

This was not an improper question, and would be but one of the tests to ascertain whether or not the juror had any conscientious scruples against the infliction of death for crime. Besides this, the death penalty was not assessed in this case, and appellant does not contend that any juror was challenged or stood aside because of his answer to this question.

In bills Nos. 5, 6, and 7 appellant complains that the court would not permit him to propound to Mrs. J. H. Hicks certain questions. Nowhere in either of the bills is it stated what Mrs. Hicks would have answered or testified to in regard to the several matters complained of. The questions all related to matters' occurring some three or four years prior to this homicide, and could have had but little, if any, bearing on the issues involved in this trial. In addition, in reading this record it is made manifest that Mrs. Hicks did testify in regard to all the matters about which appellant desired to question her, and doubtless the court ruled as he did to prevent a repetition of the same testimony.

The witness Roy Barker was properly permitted to state what he testified to at the examining trial. The written statement, taken at the time, could be used to impeach him, if he did not so testify. His stating what he testified to would not be secondary evidence.

When the defendant introduced a portion of the testimony given by Mrs. Hicks on the trial of Edgar De Arman for the purposes of impeachment, there was no error in permitting the state to introduce other portions of this testimony relating to the same matter as that portion introduced by defendant related to. When a portion of a statement or testimony is offered in evidence, then all the statement bearing on that matter, testified to at the same time, is admissible to render the meaning clear. Article 811, C. O. P.

There was no error in refusing to permit appellant to introduce evidence to prove that Miss Hixie De Arman was really sick when court adjourned on account of her illness. She so testified, and by her cross-examination on that point her testimony in regard thereto was not seriously assailed nor questioned,

Appellant claimed on this trial to have killed deceased because of his relations with his sister, Miss Lulu De Arman, and insult to his sister, Miss Hixie De Arman. His contention was that he killed deceased the first time he met him after'learning of these matters. Under such circumstances' there was no error in the court permitting the state to elicit from Terry De Arman on cross-examination that he had discussed with appellant, some three years prior to this time, this matter, and to prove by other witnesses that appellant and deceased had met on several occasions since that time. And as appellant was contending there was trouble existing between Will De Arman and Edgar De Arman at the time Edgar shot and killed Will, and was further contending that appellant had testified against Edgar at the time he was convicted, it was permissible for the state to show that at that time there were rumors afloat that Will De Arman and his sister, Lula, were engaging in improper relations. Appellant’s sister, Lula, gave birth to a baby at about that time, and while appellant was introducing testimony that deceased may have been the cause of his sister’s ruin, it was permissible for the state to show, if it could .do so, that no improper relations existed between deceased and Lula, and that Improper relations existed between her and her brother Will, and that appellant knew of it and had discussed the matter with his brother Terry. Appellant had introduced Terry to show that deceased was guilty of improper relations with his sister, and there was no error in the court permitting the state to draw from the witness on cross-examination the following statement:

“Me and the defendant Claude had discussed, prior to the killing of Charlie Brown, the relations between Will De Arman, my brother that was killed, and my sister Lula De Arman. As to whether we had discussed the fact or the alleged fact that my dead brother, Will De Ar-man, had been having sexual intercourse with my sister Lula De Arman from the time she was 14' years old until Will De Arman was killed, we had suspicioned it and talked of it to that effect. I did not see the affidavit made by my sister Lula. I don’t know whether. I was in town with her the day she made it. She told me she made an affidavit; that’s all.”

And after this testimony was introduced, the comments of Mr. Cunningham thereon in his argument were legitimate, and the bill complaining of such remarks presents no error.

The court did not err in refusing to permit appellant to go into details of how he received a cut several years before this difficulty. The only way it was referred to by state’s witnesses was that Mr. Gist referred to it incidentally as fixing the time of a certain occurrence in 1915, a year before this killing occurred. Appellant was permitted to, and did, testify that he received it in an effort to separate some other parties engaged in a fight.

The only other question raised in the record before us is that the juror J. W. Glaze, who served as one of the jurors in this case, could not read nor write. We might pass this off by stating that the juror swears no such question was asked him on his examination. Under such circumstances objection after verdict would come too late. But subdivision 14 of article 692 provides that this cause for challenge shall not be sustained when it appears to the court that the requisite number of jurors able to read and write cannot be found in the county. Without wishing to reflect on the citizenship of Taylor county (if it should be a reflection), we will say that in the testimony heard appellant offered no evidence that a sufficient number of jurors resided in Taylor county who could read and write from whom to select a jury. Even had the court known at the time the juror was impaneled that he could not read nor write (which he did not), still unless it was shown there was a sufficient number of qualified persons residing in Taylor county who could read and write, out of whom a jury could be impaneled, we would not be authorized to review the action of the court in overruling the motion for a new trial on this ground.

We have not undertaken to give a synopsis of the testimony. The details of the killing as detailed by appellant are horrible. The only issue in the case as made by him is, Did the evidence show that his mind was so inflamed by an adequate cause as to reduce the offense to manslaughter? This issue was fairly submitted to the jury in the court’s1 charge; all legitimate evidence bearing on that issue tendered was admitted, and the jury was fully authorized to find on the testimony we have before us that the killing occurred in accordance with a predetermined determination to kill while appellant’s mind was cool and collected, and that he was perfectly cool and collected when he ran Brown down and killed him.

The judgment is affirmed.
      @=>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿S^oFcr other oases see same topic and KEY-NUMBER in all Key-Numbered -Digests and Indexes


text:
    WARBINGTON v. STATE.
    (No. 4223.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Criminal Law <&wkey;1159(3) —Appeal — Review — Questions of Fact — Conflicting Evidence.
    On a criminal appeal, if all the incriminating testimony is sufficient to convict, • the verdict will not be disturbed, whether such testimony is disputed or not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. 4&wkey;1159(3).]

      2. Homicide <&wkey;250 — Murder — Evidence— Sufficiency.
    In a murder trial, evidence that deceased and accused were rivals for a woman in the neighborhood, that accused had enticed deceased from his home, and that accused had threatened deceased and prepared himself to kill him, was sufficient to sustain conviction; it not appearing that any person other than accused had any motive for killing deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. &wkey;250.]
    3. Homicide &wkey;>166(9) — Evidence—Motive.
    Testimony "of a woman and her daughter as to accused’s relation with the woman was admissible to show motive for murder by accused; it appearing that deceased was his rival with the woman.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 328; Dec. Dig. <@=»166(9).]
    4. CRIMINAL Law <&wkey;455 — Opinion—Expert Opinion.
    Testimony of accused’s jailer that while accused was in jail at night he would stumble against the benches and seats in walking around, offered by accused in a murder trial for the purpose of showing he could not see at all in the dark, was properly excluded, as not being that of an expert.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1044; Dec. Dig. <®=»455.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Anderson Warbington was convicted of murder, and appeals.
    Affirmed.

      Y. D. Harrison and W. C. Lane, both of Marshall, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder of John Houston, and' his punishment assessed at 10 years in the penitentiary.

The only serious question in the case is whether or not the evidence was sufficient to sustain the verdict. Appellant’s able attorney in his written brief contends, and also in oral argument earnestly and forcibly contended, that the evidence was not sufficient. He suggested in argument the absence of ■evidence which he claimed might have strengthened the state’s case, and without which it was insufficient, such as that the state had no evidence that appellant’s tracks were seen at or near the body of the deceased, and an absence of testimony that the appellant had a gun with which he could have done the killing. We think the legal question as to the sufficiency of the evidence is not to be measured by wbat was not proven in these or other particulars, but the question is whether that which was introduced was sufficient. It may • be • the state could have strengthened its case in some particulars, and the evidence upon the whole could be said to be somewhat weak. However, we have carefully read and studied the testimony, and our conclusion is that it was sufficient to sustain the verdict, and that we would not be justified to hold otherwise.

There were some conflicts In the testimony by some of the witnesses, but in considering a question of this kind' the law is that we must take all the incriminating testimony which would show the offense, whether disputed or not, and if thereby guilt is shown, and the jury so find, it is sufficient.

Appellant’s defense was alibi. He and his wife alone on the subject testified that, at the time fixed by the witnesses when the gun was fired which killed the deceased, they were at home in bed asleep. The uncontradicted testimony shows: That Lorisia Coby, a negro woman, appellant being a negro, had lived on his place in about a quarter of a mile from where he had lived for five years continuously before the killing. That during all these years appellant had “kept” her, and both in daytime and at night frequently had sexual intercourse with her. That about two months before the killing, as she testified, she had been “weaned off” from him, and for these two months had refused to have further sexual' intercourse with him. That in effect he complained, and upbraided her for this. That the deceased, who lived a mile or two away, but in the same neighborhood, had induced her to remove from appellant’s place and move to where he lived, and she had arranged with him, and he was going to move her and her family the Monday following the Friday night on which he was killed, and appellant knew all this. That a few days before deceased was killed appellant went to Tom ’Johnson, a relative of Lorisia, with whom Lorisia consulted about her business, ete., and tried to induce Johnson to get the woman not to leave him. That at this time appellant asked where deceased lived, and the witness pointed out deceased’s house to him, about a quarter of a mile from where they then were. He then asked the witness if he had seen said woman come through a gate leading out of deceased’s place a few days before that, and the witness told him that he" had. Just at. this time they saw deceased himself coming the same route he was asking about the woman having come, and he told the witness that he did not want deceased to see him, and to avoid being seen by him he got behind a woodpile and concealed himself at the time. That the burden of his talk with this witness at this time was to induce the witness to get the woman not to move away from the appellant, but stay with him. Among other things, he then told said witness that he knew somebody had told that deceased was the one that was moving her away from there, and he said: “No man could move her away from there and stay around there.”

Lorisia had a grown daughter, Lizzie McGee, and also, it seems, two sons and a little girl about nine years old, who lived with her. On Thursday evening before the killing Friday night, appellant went to Lorisia’s house, crying, and asked where she was, and Lizzie told him she had gone off, and he asked if she had gone to hunt a place. Lizzie told him she reckoned so, and he said: “Are you going to leave me anyhow?” Lizzie replied she reckoned so, and he then said: “You children never have been down in prayer with me, and I want you to go down in prayer with me one time.” He then went down in prayer, and among other things, he prayed: “Turn Lorisia while it is turning time.” He then asked Lizzie if she would do something for him. She replied she didn’t know. He said: “Are you going to John Houston’s to-day?” Lizzie told him she was. He said to her: “I want you to tell John Houston to come down here to your house tomorrow night; I want to see him on some business.” And he told her not to let anybody hear her tell him. She promised to tell deceased, went up to deceased’s house the next day, took him off by himself, and told him what appellant had told her to tell him — that is, to come down to her house that night, that appellant wanted to see him on some business — and that deceased answered, “All right.”' •

Appellant went to Marshall, some 13 miles distant from where he lived, on the next day, Friday, and while there bought two BB cartridges. He returned home, reaching there late in the evening. He said, after reaching home, he saw some smoke about halfway between his house and Lorisia’s and went down to see about it. Lorisia testified that he came to her house that evening about sundown; that she was out in the crib shelling corn at the time, and that he asked her why she spoke to him so “snappish” and treated him so cool as she had done the last two or three months. She denied this, and he asserted that she had, and that he then asked her if she had made up her mind about leaving, and she told him that she had concluded not to stay. He then asked, “Don’t you think somebody is ‘root-working’ me and you?” and she replied, “No and that he said she might be mistaken. The ■deceased, John Houston, was killed that night about .7 o’clock, or a little later, about 200 yards from Lorisia’s house, in a road or path back of her garden, which road or path led around to her house. Two shots were fired at the time, one striking deceased in ‘the side of the face, and the other in the breast near the heart, killing him. The shot in his breast were large shot. When Lorisia and her children heard these two shots, they immediately left her home and went to a nearby neighbor’s, where she remained the balance of the night. Early the next morning the body of the deceased was found at the place indicated, showing that he had been killed the night before.

John Newhouse testified that, just before appellant’s trial at the preceding term of the court, appellant told him he wanted him, and would pay him, to swear on his trial that át the time said shooting took place he (the witness) was at appellant’s home, and stayed there until 8 or 9 o’clock, and that appellant went to bed before he left. In other words, he wanted this witness to falsely testify to an alibi for him. The witness said that he was not at his house at the time, but four or five miles therefrom, and knew nothing about the shooting or killing at the time, and refused to swear as appellant wanted him to.

The testimony, we think, authorized the jury to find and believe, as they did, that appellant and no one else shot and killed the deceased. There is not an. intimation anywhere in this record that any person other than appellant had any motive whatever for killing the deceased. The testimony shows that he had the most powerful motive; that he had threatened to do so, and prepared himself to do so, and enticed the deceased from his home to Lorisia’s house for that purpose.

Appellant objected to the testimony of Lorisia and' her daughter to the effect that appellant had “kept” Lorisia for said years and had had sexual intercourse with her. This testimony was clearly admissible to show motive on appellant’s part.

The appellant had the jailer to testify that, while he kept appellant in jail on the charge in this case, at night, he would stumble against the benches and seats in walking around in the jail. The witness was not an expert. From this testimony by the jailer he sought to have him further testify that appellant could not see at all in the dark. The court properly excluded any such conclusion of the witness, he not being an expert.

We have thus held on these last points as if the questions were properly raised. As a matter of fact, it seems they were not raised in such a way that we would be authorized to consider them.

The judgment is affirmed.
      (&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numhered'Digests and Indexes

      ^=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered'Digests and Indexes


text:
    SARLI v. STATE.
    (No. 4174.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <§=59(5), 80 — Accomplice —Conviction.
    To convict one as an accomplice to murder, the evidence must show that the alleged principal was guilty, and that the alleged accomplice advised, urged, commanded, or furnished the means to such principal with which to commit the murder.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. |§ 81, 103-111, 1384; Dec. Dig. <§=»59(5), 80.5
    2. Criminal Law <@^>423(1) — Evidence—Declarations OF CONSPIRATOR.
    The acts and declarations of coconspirators made by either in furtherance of the common design are admissible, where they show the criminal relation between them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989, 999; Dec. Dig. <@= 423(1).]
    3. Criminal Law <@=422(1) — Evidence — Conspirators — 1Time.
    The acts and declarations of coconspirators are admissible, where they occur before the completion of the conspiracy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 984-986, 988; Dec. Dig. <@=422(1).]
    4. Criminal Law <@=424(1) — Evidence — Conspirators — Limitation.
    In a prosecution for being an accomplice to murder, the acts and declarations of the alleged pi'incipal subsequent to the homicide were inadmissible against the accomplice for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002, 1006, 1008, 1010; Dec. Dig. <@=424(1).]
    5. Criminal Law <@=3673(2) — Evidence—Declarations op Principal — Limiting Effect.
    In a prosecution for being an accomplice to murder, by reason of acts done prior to the murder, the acts and declarations of the alleged principal after the murder, though relating to the accomplice, should be limited to proof of the principal’s guilt, and not to connect the accomplice with the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. § 1874; Dec. Dig. <@=3673(2).]
    6.Criminal Law <@=>761(1) — Instruction-Assumption of Fact — Accomplice.
    In such prosecution, where the declarations of the alleged principal after the killing and the end of the conspiracy were inadmissible against the accomplice, the charge that the alleged principal was an accomplice was erroneous, as assuming the crucial point in the case against the defendant.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1731, 1763; 761(1).] see Criminal Dec. Dig. <@=
    7. Criminal Law <@=428 — Evidence — Accomplice-Corroboration.
    In such prosecution, wherein the alleged principal was not a witness, the rule of corroborative evidence applicable to accomplice’s testimony could not apply, and it was error to so charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1017; Dec. Dig. <@=428.]
    8. Criminal Law <@=424(3) — Evidence — Hearsay.
    In a prosecution for being an accomplice to murder, acts and declarations ■ of the alleged principal made after the murder and the completion of the alleged conspiracy and out of the defendant’s presence were hearsay, and inadmissible to connect defendant with the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1004; Dec. Dig. <@=424(3).]
    9. Homicide <@=288 — Instructions—Accomplice — Reason for Killing.
    Where the state’s theory was that defendant advised or commanded the alleged principal to kill deceased, on a showing that if, while defendant and the alleged principal were at a certain place, the girl to whom the deceased was engaged asked him to make the principal leave, and deceased started off to get a weapon to kill the principal, for which reason the principal shot him, the court should have instructed that, if the killing was for a different reason than that advised by defendant, the jury should acquit.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 593; Dee. Dig. <@=288J
    10. Criminal Law <@=424(3) — Evidence — Hearsay.
    In a prosecution for being an accomplice to murder, testimony as to the declarations of the alleged principal on the day after the killing that he had scared or killed a man under the defendant’s orders, not made in the defendant’s presence, was hearsay ' and inadmissible as against defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1004; Dec. Dig. <@=424(3).]i
    11. Criminal Law <@=673(2) — Limiting Effect of Evidence — Duty of Court — Accomplice — Principal.
    That part of such testimony tending to-show that the alleged principal was a principal should have been limited to that purpose, and not allowed to connect defendant with the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1874; Dec. Dig. <@=673(2).]:
    12. Criminal Law <@=414 — Evidence—Letter-Predicate .
    ’ In a prosecution for being an accomplice to-murder, where a witness testified that she was. engaged to deceased, that she knew and was< friendly to defendant, and that defendant sent word to her trying to win her away from deceased, a letter received by her through the post: office was inadmissible for want of a sufficient predicate, where it did not appear that defendant had written it, or that witness knew his handwriting or had not particularly noticed what was in the letter.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 862, 936; Dec. Dig. <§=■ 414.]
    13. Criminal Law <@=719(4) — 'Trial—Argument of Counsel — Evidence Excluded.
    Where testimony that on the day of the murder defendant told witness he was going to a. certain place where he had an appointment with-the sheriff, and that a day or two after the murder witness met the sheriff and received a communication from him without stating what it was, was excluded on defendant’s objection, the-argument of the private prosecutor that the alleged statement of defendant was untrue and a ruse to call the attention of the witness to the fact that defendant was out of town, knowing-a crime was to be committed, etc., thereby bringing it before the jury, was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. <@=719(4).]-
    Appeal from District Court, La Salle County; J. F. Mullally, Judge.
    Alejandro Sarli was convicted as an accomplice to murder, and he appeals.
    Reversed, and cause remanded.
    J. Albert Strawn, of Cotulla, for appellant,. C. C. McDonald, Asst. Atty. Gen., for the-State.
   DAVIDSON, J.

Appellant was convicted' as an accomplice to murder, his punishment being assessed at 50 years’ confinement in -, the penitentiary. The indictment charges.that Porfirio Tores was principal in the ■ murder of Ike Hill, and that appellant was. his accomplice. Tores was convicted, awarded the death penalty, and hanged something - like a year prior to the trial of appellant..

In order to convict appellant as tlie accomplice, tlie evidence must show that To-res was guilty, and that appellant advised, urged, commanded, or furnished the means to Tores with which to hill Hill. The evidence shows that appellant and Hill were personal friends, so far as the record shows, to the time of the hilling. On the day of and preceding the hilling at night the state’s theory is, that appellant bought four rifle cartridges. After the hilling Tores was found in possession of three shells and one hull corresponding in size with those the witness says appellant bought. Another witness testifies that subsequent to the above-alleged purchase Tores borrowed 25 cents from appellant. The state’s theory is that Tores, with this ' money, purchased the same character of shells. It is further in evidence that appellant, after the purchase of the shells, left that neighborhood for the town of Tilden, in McMullen county, and was not at nor about the place of the killing at the time it occurred. The evidence discloses that he stated upon leaving Eowlerton, where the homicide occurred, that he was going to the Berry ranch, in McMullen county, to meet Mr. Holland, sheriff of that county, with reference to the, arrest of a Mexican named Garcia under a charge of murder. The state also introduced evidence to the effect that a Mexican girl, supposed to have been intimate with and engaged to Hill, received a letter, which she says she opened and read one line, which requested her to be the writer’s sweetheart. It was written with a lead pencil. She did not know who wrote the letter, and did not know the handwriting of appellant. Subsequently, and before the homic-ide, appellant was at her house, and she handed him the letter, which he tore up and threw away. The deceased, Hill, was about the premises at that time. Hill was intimate with the girl, and was engaged to be married to her; in fact, the inference is that she was his mistress. The state’s contention is that appellant wanted to secure her affections. The state introduced .statements of Tores made after the homicide. He was hanged about a year before this; therefore could not and did not testify. These statements were made subsequent to the homicide. These will be noticed in taking up the bills of exception, charges of the court, and other matters.

Appellant’s contention was that he had nothing to do with nor advised the killing. Among other things, it was proved at the time of the homicide that Hill was at the house where the girl lived; had come to see her to get some washing. The girl had been advised by appellant that Hill would be there that night, the night of the killing, to get his washing, which appellant had carried to her house at the request of Hill prior to the killing. Hill came, and Tores, the principal, was present. The girl asked Hill to make Tores leave the place on account of some misbehavior on his part she did not relish. Hill asked him what he was doing there and what he meant, then turned to walk away, remarking to Tores he would be back in five minutes, or words to that effect. Tores then remarked to him, “If you are going to kill me, I will kill you first,” and immediately shot Hill. Tores left and went some miles away to a camp of two other Mexicans. They inquired why he was riding around that time of night. He replied he had shot a Gringo; that the Gringoes were chasing him. He did not seem to know whether he had killed Hill or not, or the Gringo, as he called him. Statements from Tores are also to the effect that appellant told him to kill the first Gringo that came to his house on that night, and that Hill was the first one that arrived. The state’s theory was that, because appellant had notified the girl that Hill was coming to her house on Saturday night, Hill was the man he had in contemplation when he (appellant) told Tores to kill the first Gringo that came. This is a sufficient statement of the case to review the questions presented.

There are exceptions to the charge given and requested charges refused. The court charged the jury as follows;

“You are instructed that the acts and declarations of said Porfirio Tores in evidence (if any), in so far as they relate to the defendant Alej'andró Sarli, must be taken and considered as the acts and declarations of an accomplice. Now, you cannot convict the defendant upon the testimony before you as to the acts and declarations of said Porfirio Tores alone, unless you first believe that such testimony and such declarations are true, and connect the defendant with the offense charged, and then you cannot convict the defendant upon said testimony and declarations, unless you further believe that there is other testimony in the case, corroborative of the testimony as to such acts and declarations of Porfirio Tores, tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.”

Appellant objected to the above charge, first, because the j'ury is permitted and required to receive and consider the testimony as to the declarations and acts of Porfirio Tores in evidence as proof of the guilt of the defendant, and permits the j’ury to find the defendant guilty if the jury believe the testimony as to such acts and declarations of Porfirio Tores is corroborated by other testimony tending to connect defendant with the offense charged, and for the reason that said portion of the charge permits the jury to consider testimony as to the acts and declarations and confession of Porfirio To-res, made after the commission of the offense charged and before the commission of the offense, as evidence of the guilt of the defendant, when no conspiracy whatever has been proven by the state to have been entered into between defendant and Porfirio Tores to kill Ike Hill, and after the offense had been committed, even if a conspiracy is proved, and for the further reason that said language is contradictory to the fundamental law of the case, to wit, that the acts and declarations of the principal, or his confession, can be proved and considered on the trial of the accomplice for the sole and only purpose of establishing the guilt of the principal, and, in the case at bar, for the sole purpose of proving that the principal, Tores, committed the offense charged against Tores, that is, the murder, and further objects to another charge because it fails to present to the jury any theory raised by the evidence except that of defendant’s guilt or innocence, presented affirmatively, based upon the indictment, for the reason it is shown by the uneontradicted evidence that the deceased was the first to approach the alleged slayer, and made certain threats which, considering the evidence drawn from state’s witnesses that Porfirio Tores, alleged principal, was commonly regarded as being of unsound mind, might easily have been concluded by the jury to have been an independent cause of the hilling and considered and acted upon as a provocation by Porfirio Tores at the time it is alleged he hilled the deceased, and which testimony could easily preclude the guilt of the defendant and account for the hilling of deceased, and for the reason said main charge fails to properly limit the purpose for which testimony as to acts and declarations of Porfirio Tores was introduced and could be considered.

Outside of the charge above quoted, the only other portion of the charge on this phase of the case was the general submission to the jury of the proposition that, if Tores hilled Hill and appellant advised him, etc., prior to the hilling, appellant could be convicted. There were two propositions in this case the state was compelled to meet and prove: First, that Tores did the hilling; and, second, that appellant advised or furnished him the means prior to the homicide for that purpose. The indictment precludes the conviction of appellant as a principal, or any other connection with the offense, except that of an accomplice. It is not sought to show his presence; and in fact the state, in order to prove its case, had necessarily to show that appellant did not participate in the hilling, and it had further necessarily to show that appellant advised Tores to hill deceased before the hilling. It is the law of Texas, both statute and opinion, that the guilt of the principal must be shown, or there can be no accomplice. There can be no accomplice to an offense, or a principal in an offense, unless the principal commits the offense about which he was advised or commanded to commit. The acts and declarations of the principal are admissible to prove his guilt. 1-Iis acts and declarations may or may not become evidence against the accomplice on the trial of the accomplice. The acts and declarations of a coconspirator, if an accomplice can be so classed with the principal, or the alleged principal, made by either in furtherance of the common design, may be introducible evidence on the main case, but in order to admit this character of testimony it, must in some way show or tend to show the criminal relation between the principal and the accomplice. All of this character of testimony must occur before the completion of the conspiracy or end of the conspiracy. In this case, if appellant was guilty as accomplice to the principal, Tores, it was by reason of facts, circumstances, or acts connecting the accomplice with the principal prior to the hilling. There was nothing in contemplation, so far as this record goes to show, to be done by the parties after the killing. They were not shown to have acted together afterwards, and’in fact the state’s testimony excludes that idea. We think, therefore, that the charge of the court was error. The charge should have been as contended by appellant, to the effect that these acts and declarations of Tores should' have been limited to proof of his guilt, and the jury further instructed how and for what purpose they could consider his acts and declarations. Acts and declarations of one coconspirator made in furtherance of the common design and prior to the consummation of it might be used against either or both as original evidence, but the jury in their consideration of the case should be carefully guarded as to the effect and purpose of these statements. This charge nowhere undertakes to do this, but the court simply gave the charge above specified, that the acts and declarations of Tores could be considered as evidence against appellant and that Tores could be the accomplice. All the acts and declarations made subsequent to the homicide could not be used against appellant for any purpose. Criminative* statements made by Tores might be used against him because he made the statements and declarations but those made after the consummation of the agreement, if there was one, could not be used against appellant; for the whole end and scope of this conspiracy, or the-advising of Tores by appellant, if such thing occurred, was terminated in the killing under this record. All of the acts and declarations, and there were several introduced in evidence, made by Tores after the killing, that in any way involved or referred to defendant, should have been limited to the jury for their consideration alone as to Tores in proving his guilt. Such declarations could not be used to connect appellant with the offense. Therefore the! court, in charging that Tores was an accomplice, assumed the very crucial point in the case against defendant. Tores was not a witness; therefore the rule of corroborative evidence applicable to accomplice witness could not apply, and the court was in error in so charging. If the state has a case on the facts at all, it is very weak. The court did not stop there, but emphasized the error, as we understand, when he instructed the jury that these acts and declarations of Tores, whom he charged was an accomplice to the defendant, must be corroborated.

So far as the defendant is concerned, those acts and declarations were purely hearsay, and could not be corroborated so as to affect the defendant. They were declarations of Tores made after the consummation of the act, at the termination of the design and purpose of the conspiracy, if it be a conspiracy, or the advising by appellant to Tores to kill, made out of the presence of appellant and because Tores was not a witness. Tores, by making these statements, could not corroborate himself, even if he had been a witness, but he was not a witness, and whatever of the acts and declarations of Tores were introduced before the jury was necessarily on the theory that he killed Hill at the instigation of appellant. This could not be used as testimony where the statements were made after the consummation of-the design, and the jury should have been so told plainly, but instead the court in this charge instructed the jury that the acts and declarations of Tores could be treated as evidence against appellant, and not only that, but these acts and declarations should be corroborated in some manner tending to connect the defendant with the crime. This was hearsay testimony, could not be used to connect appellant with the crime, and could not be corroborated, because illegitimate testimony and inadmissible, and not only so, but they were declarations of Tores made after he had killed Hill, in the absence of defendant, and were not subject to corroboration. If the case should be tried again, it should be upon the theory that such acts and declarations of Tores admitted in evidence should only be those anterior to the killing and in furtherance of the common design if used to affect appellant. If they cannot be connected in this way, all the acts and declarations of Tores would be inadmissible, except to prove his own guilt. They could not be used to prove the guilt of defendant, and all acts subsequent to the killing of Hill and statements of Tores in regard to that matter should be excluded from the jury, except where they' tend to show the guilt of Tores in killing Hill, and the court’s charge should properly so limit the testimony.

There is another question raised, a charge asked and refused to this effect: That if Tores killed Hill because he believed Hill was going after a weapon and would return in five minutes and kill him, and that if for this reason Tores killed Hill, the jury should acquit appellant. We believe the charge embodying this idea should have been given the jury. The state’s theory was that appellant did advise Tores to kill Hill. If while he was at the house the girl asked Hill to make Tores lehve, and Hill started off after a gun to come back, and Tores believed he was going to kill him, and for that reason he killed Hill, appellant could not be convicted, provided this was the sole reason for which the killing occurred. This was directly antagonistic to the theory that appellant was an accomplice, and the jury would have to believe he was an accomplice in order to convict. If he killed Hill for a different reason and because he thought Hill was going to kill him or do him some injury, then the killing of Hill would not be under the command or advice or by means furnished by appellant. This charge should have been given, or this idea in some way presented to the jury.

The following charge was requested by appellant, which we think should have been given:

“You are instructed not to take into consideration the testimony of Valentin Herrera and Polito Vasquez as to the declarations and acts of Porfirio Tores, made at the Fleming-Holmes store in Fowlerton on the day after the alleged killing of Ike Hill and the Sunday after at the camp of Polito Vasquez, for any other purpose than to. establish the guilt of Porfirio Tores, and cannot be considered as proof of any guilt of the defendant Alejandro Sarli, as charged in the indictment.”

This charge should have been given, but was refused. A hill of exceptions recites that while Vasquez was testifying he said:

“I saw Porfirio Tores on the night of the 26th of October, 1913. He came to my camp. He arrived there at the hours of night with a gun in his hand. Then he saluted me, and I asked him what he was doing so late at night, and then he told me he came running away because the Gringoes were after him because he had scared or killed a white boy there in town; he did not know whether he was dead or alive; that when he shot at him he fell to the ground. Then I asked him what had been the question for him (Tores) to shoot at him, and he (Tores) told me that when he worked for a man he did as they ordered him; that Alejandro Sarli had gone to Tilden the day before, and he (Alejandro Sarli) had left orders with him (Tores) that the first Gringo that came to the house to use his gun on him; and that he was the first one to arrive, and he was the one he used the gun on.”

Various objections are urged to the admission of this testimony, especially that part of it as to what defendant did or told Tores to do, for the reason it is hearsay and not binding on defendant, and for the reason it is not shown defendant was present at the time or had any connection with the conversation between witness and Tores, and it is immaterial and irrelevant. This testimony was not admissible against appellant. It was hearsay altogether as to appellant. He was absent, and the statement of Tores shows he was absent; not only so, but was absent from the scene of the killing and had gone to Tilden. This statement of Tores would tend to show, had it been legitimate testimony, that he had been by appellant advised or commanded to shoot the first Gringo that came to the house, and that this boy Hill was the first one to arrive; therefore he killed him. This was after the killing, which occurred Saturday night, early in the night, and this was on the night of the following day. The killing occurred on the 25th day of October, and this conversation occurred at night on the 26th day of October.

That portion of this testimony that was introducible against Tores shows that he was a principal, and should have been limited exclusively to that purpose and for that reason. It was very damaging testimony, and should not have been permitted to be weighed by the jury for the purpose of connecting the defendant with the transaction.

Another bill recites that the girl, whose name was Panchita Quintanilla, while testifying, over objection of appellant, was permitted to state:

“I was engaged to Ike Hill about a year before his death, and we were to get married, and I also knew Alejandro Sarli. We were friends. Alejandro Sarli sent word to me, but I don’t know, sending asking if I wanted to be his sweetheart.”

The letter introduced in connection with this girl’s testimony is set out in bill of exceptions No. 14. She received this letter through the post office. It was written in pencil. She had never seen appellant’s writing, and did not know his handwriting, and did not recall when she received the letter. She did not read the letter very well, only part that he said—

“if I had love for him, and I just took it and put it up. I gave it to Alejandro one day at my house, while he was on the gallery. He took it and tore it up. I saw him. I just read two or three words; I did not notice very well. He did not open the letter when I gave it to him. He did not look at it. I don’t know when the letter was dated. I gave him the letter, and said I did not have any use for it. He never said a word. At the time I gave Sarli the letter Ike Hill, the deceased, was at my house.”

This was objected to on various grounds: It was not shown that defendant had written the letter; that she did not know the handwriting of defendant, and was not qualified to testify that the letter was written by defendant; and for the reason that witness did not notice particularly what was in the letter. These objections were overruled. This letter under this bill of exceptions should not have been admitted. There was no sufficient evidence to show that appellant had written the letter. We are led to believe this letter was introduced on the theory that appellant was trying to win the affection of the girl, and that Hill was already in love with her, and their relations were such that she discouraged Sarli. The state offered this, it is supposed, on the theory that this may have been some inducement to have Hill killed. If it was not offered for this purpose, it would be difficult to imagine for what purpose it was offered, but, unless the letter was proved up in some way so as to show appellant wrote or authorized the writing of the letter, it would not be introducible. The predicate was not sufficiently laid.

There are some speeches of the prosecuting officers set out that ought not to be indulged and will be carefully avoided upon another trial. Another bill in this connection will be noticed. Mr. Humphries testified that the defendant, on the day of the homicide, told him (witness) that he was going to the Berry ranch, where he had an appointment with Will Holland, sheriff of Mc-Mullen county, to look for a Mexican who was wanted upon charges of murder, and further that a day or so after the homicide that witness met Sheriff Will Holland and received an official communication from him, without stating what it was, and that a man was dispatched to Fowler ton and a wire sent,to Tilden. The court excluded this testimony on objection of the appellant, but private prosecutor, Hon. Frank H. Burmeister, during the course of his closing argument for the state, made the following observation:

“The state contending that the statement testified to by the witness Humphries, as made by defendant, that he had an appointment with the sheriff of McMullen county, being untrue and a ruse to call the attention of the officer, Humph-ries, to the fact that defendant was out of town, knowing a crime was to be committed, I can presume that when Mr. Humphries met Mr. Will Holland, sheriff of McMullen county, who did not testify in this case, and asked him and told him what Sarli (defendant) had said, that he could presume that Mr. Holland said: T have not seen that fellow; I don’t know anything about him.’ ”

Objection was urged to this, among other things, that it was bringing testimony before the jury in an indirect way that was excluded by the court. This was error on the part of counsel, and should not have been permitted by the court. This was getting in through the mouth of the prosecuting officer what had been excluded by the court, or what was supposed to have been what Mr. Holland would have stated. This was never testified before the jury, and it was made as a presumption on the part of the attorney that these things did occur. If that had been before the jury through the mouth of the witness Holland, it would have doubtless been injurious, but Mr. Holland was dead, and did not testify in the case, and the attorney is not permitted or authorized to make the statement that Holland would supposedly have testified had he been present.

The remaining bills of exception with reference to arguments are not discussed, and are not further noticed than by cautioning prosecuting attorneys to keep within the record.

The judgment is reversed, and the cause is remanded.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered 'Digests and Indexes

      <i=For. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MEDFORD v. STATE.
    (No. 4220.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <&wkey;1092(4) — Bra ox Exceptions — Time por Filing.
    A bill of exceptions, filed more than SO days after accused’s motion for new trial lias been overruled and be has appealed, is too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2847, 2848, 2849, 2851; Dec. Dig. <®=3l092(4).]
    2. Criminal Law i&wkey;1092(5), 1099(6) — Appeal — Record—Evidence on Motion poe Ne.w Trial.
    In order to get the benefit of the evidence heard on motion for new trial, the statement of facts heard thereon, in the form either of statement of facts or contained in a bill, must be filed during the term at which the trial- occurred.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2847, 2877; Dec. Dig. <&wkey; 1092(5), 1099(6).]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    R. E. Medford was convicted of a simple assault, and appeals.
    Affirmed.
    See, also, 174 S. W. 607.
    R. E. Medford, of Bonham, in pro. per. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of a simple assault, and fined $25.

The term of court at which he was convicted, as a matter of law, could continue longer than 8 weeks; and, as a matter of fact, did continue longer than 8 weeks. The court overruled his motion for a new trial on April 3,1916, at which time he gave notice of appeal to this court, which was duly entered. He has a bill of exceptions filed more than 30 days after this and some weeks after the term of court had adjourned, in which is contained what purports to be the evidence heard before the judge contesting the grounds of his motion for a new trial without any order allowing any time other than the statute allows, 30 days. His bill, therefore, cannot be considered by this court, as contended by the Assistant Attorney General, on two grounds: (1) That it was filed too late — more than 30 days after his motion for a new trial was overruled, and he appealed. (2) In order to get the benefit of the evidence heard on a motion for a new trial, it is necessary that the, statement of facts heard thereon, .whether in the form of a statement of facts or contained in a bill, must be filed during the term at which the trial occurred. See authorities collated in section 598, p. 307, Branch’s An. P. C. This is the only bill in the record. There is no other question to discuss.

The judgment is affirmed.
      (tesFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McAFEE v. STATE.
    (No. 4260.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Criminal Law <&wkey;1095, 1102 — Bills op Exceptions — Time por Filing.
    ' Where purported bills of exceptions and statement of facts were filed nearly 90 days after adjournment of court, a motion to strike them out, because filed too late, must be granted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <@=51095, 1102.]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Tom McAfee was convicted of vagrancy, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for vagrancy, with a $1 fine. The purported bills of exceptions and statement of facts were filed nearly 90 days after the adjournment of court. The Assistant Attorney General’s motion to strike them out, because filed too late, must be granted. Without these, no question is raised which can be considered.

The judgment is affirmed.