text:
    MORRIS v. STATE.
    (No. 5060.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 23, 1918.)
    1. Criminal Law <@=3714 — “Allusion to Former Conviction.”
    State’s attorney’s reply to defendant’s objection to introduction of certain testimony, “the fact is the court of criminal appeals has held all of these facts and circumstances are admissible,” was not an allusion in argument to the former conviction, inhibited by Code Or. Proc. 1911, art. 843.
    2. Criminal Law <@=3723(3) — Argument of Counsel.
    Argument of state’s attorney in closing, “if this case does not furnish grounds for a conviction the door of the grand jury should be closed, the sheriff should retire, and the district judge resign,” is not of a character to receive sanction of an appellate court.
    3. Criminal Law <@=3726 — Retaliatory Argument.
    Argument of state’s attorney invoked by accused does not authorize reversal.
    4. Criminal Law <@=31169(5) — Admission of Improper Testimony •— Cure by Instruction.
    Assuming that evidence that prosecutrix at time of alleged assault to rape had been pregnant for four and one-half months was inadmissible, it was not of such harmful character that error in its admission was not cured by its withdrawal from the jury by written instruction given shortly after its admission, one of the theories of defendant being consent.
    6.Criminal Law <§=31169(1) — Harmless Error-Admission of Evidence.
    Admission of testimony that prosecutrix exhibited to members of the grand jury garments worn by her at time of alleged assault to rape was not error, such testimony, in substance, being in the record from other’sources.
    6. Rape <@=346 — Assault — Evidence Describing Scene — Admissibility.
    Admission of testimony describing the scene of the assault to rape, and the evidences thereof upon the ground, held without error.
    7. Criminal Law <@=3396(2) — Eliciting Part of Conversation.
    Admission of testimony which was part of a conversation between prosecutrix and her husband, elicited by accused, cannot be error, in view of Code Or. Proc. 1911, art. 811, as to inquiring- into whole of conversation.
    8. Criminal Law <@=>413(1), 419, 420(11)— Self- Serving Declarations — Admissibility.
    Refusal to permit defendant to develop from the evidence conversations between him and his attorney was proper, the evidence being obnoxious to the hearsay rule, as well as self-serving.
    9. Rape <@=357(5) — Assault—Ability to Commit Offense — Question for Jury.
    Whether physical condition of defendant, due to use of intoxicants, was such that he could not commit assault with intent to rápe, held, under the evidence, for the jury.
    10. Witnesses <@=>388(8) — Impeachment-Statements before Grand Jury — Predicate.
    Where witness who had been near the scene of alleged assault to rape had given testimony favorable to defendant, it was proper on his cross-examination to ask questions as to condition of prosecutrix and defendant shortly after the occurrence, and, where he denied knowledge thereof, to ask him, as a predicate for impeachment, if he did not so testify before the grand jury, etc., and to show him the written statement.
    11. Criminal Law <@=>829(21) — Rape <@=>59
    (23) — Instructions—Sufficiency.
    In prosecution for assault to rape, court’s charge on aggravated assault held sufficient, rendering it unnecessary to give special requested charge upon that subject.
    12. Criminal Law <@=>1160 — Verdict Sanctioned by Judge.
    In prosecution for assault to rape, where conflicting theories as to whether defendant’s advances towards prosecutrix ■ were objectionable to her have been solved against defendant by the jury, and sanctioned by the trial judge, that solution is binding on appellate court.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Dan Morris was convicted of assault to rape and appeals.
    Affirmed.
    J. R. Stubblefield, of Eastland, and Chandler & Chandler, of Stephenville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The judgment condemns appellant to confinement in the state penitentiary for a period of two years for the offense of assault to rape. The evidence is not sufficiently variant from that developed in the former appeal (198 S. W. 141) to require a restatement further than it is given in connection with the specific assignments discussed herein.

On the trial appellant objected to the introduction of certain testimony. The state’s attorney, replying, said: “The fact is, the Court of Criminal Appeals has held all of these facts and circumstances are admissible.” On objection to this remark, the court instructed the jury to disregard it. We do not regard this as an allusion in the argument to the former conviction inhibited by article 843, C. C. P. It is not clear that the language used was such as would be understood by the jury as a reference to the former trial of this case. Such as it was, it was merely incidental to the argument of the law to the court, and while manifestly the statute might be transgressed in an argument to the court in the presence of the jury, we are of the opinion that it was not done in this instance. The court says that, while he did not regard the statement as improper, he, on request of appellant’s attorneys, instructed the-jury not to consider it. The decisions touching the subject are reviewed at some length in the case of McDougal v. State, 194 S. W. 948, L. R. A. 1917E, 930.

The state’s attorney in closing the case used the following language:

“If this case does not furnish grounds for a conviction the door of the grand jury should be closed, the sheriff should retire, and the district judge resign.”

The argument is not of a character to receive the sanction of an appellate court. Johnson v. State, 63 Tex. Cr. R. 50, 138, S. W. 1025; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193. The bill of exceptions accepted and filed by appellant is qualified by the trial judge in such manner as to show that the argument was invited by that of appellant’s counsel, and as thus explained is well within the rule that an argument invited by appellant does not authorize a reversal. Baker v. State, 4 Tex. App. 223, and other decisions of this court cited in Branch’s An. P. C. § 363.

The prosecutrix was permitted over appellant’s objections, to testify that at the time of the alleged assault upon her she had been in a state of pregnancy for a period of some 4% months. One of the theories of the appellant was the consent of the prosecutrix to such acts of familiarity as occurred and the suggestion that her subsequent complaint was due to the belief of discovery. We have been referred to no authorities sustaining the proposition that the evidence was inadmissible. Assuming that it was, we think it is not of such a harmful character that the error in its admission was not cured by its withdrawal by the trial judge. It was withdrawn shortly after its admission in a written instruction to the jury. It sometimes happens that evidence erroneously admitted is so harmful that a subsequent withdrawal will not suffice, but ordinarily the contrary is true. In Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836, this was held in affirming the death penalty case. Others are Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Price v. State, 43 S. W. 97; Robinson v. State, 63 S. W. 869; Hatcher v. State, 43 Tex. Cr. R. 241, 65 S. W. 97. On the subject see cases State v. Atkinson, 40 S. C. 363, 18 S. E. 1021, 42 Am. St. Rep. 886, and Barth v. State, 39 Tex. Cr. R. 381, 46 S. W. 228, 73 Am. St. Rep. 946. We think no reversible error is shown.

Another bill complained of the testimony that the prosecutrix exhibited to members of the grand jury the garments worn by her at the time of the assault. Such testimony, in substance, being in the record from other sources, we do not consider its admission error. Nor do we regard the bill showing the testimony describing the scene of the assault and the evidences thereof upon the ground .as presenting error. Such testimony has often been held proper. Charles v. State, 196 S. W. 180, and cases cited.

The complaint of the admission of evidence of conversations between the prose-cutrix and her husband, in connection with the explanation of the trial judge that the testimony was part of the conversation elicited by the appellant, cannot be the basis of error. As explained, these bills bring the evidence within the statutory rule declared in article 811, C. C. P. See Vernon’s Crim. Stats, vol. 2, p. 759.

The refusal of the court to permit the appellant to develop from the evidence the, conversations between him and his attorney, under the circumstances shown by the bill, was proper. The evidence was obnoxious to the hearsay rule and was self-serving.

The prosecutrix, Myrtle Cook, testified in part:

“He caught hold of me by my body under the arms, threw me down, and got on top of me. He had his person exposed. I was trying to get away and screaming all the time. He was holding me and had one of his knees on one of my knees, and his other knee on my other knee. He choked me, and said if I hollered he would kill me. Said he would-' me or kill me. He unbuttoned his pants and exposed his person, He kept me down about five minutes.”

She said that it rained and the ground was muddy, and exhibited her clothes which she said she had on at the time, which were muddy. Also her skirt, which was torn and which she said was done by appellant. She claimed that she was scratched and hair torn; and in about 30 minutes went to a neighbor’s house, agitated and crying, could not speak, and fell across the bed. She said on cross-examination:

“On that occasion his male organ was not hard; it was limber. I don’t think it ever got any other way. I don’t know. It was so limber he could not penetrate me. He attempted to. I could not see it all the time. Could not say whether it ever got stiff. Cannot tell you whether it did or not.”

The appellant testified to the transaction, and claimed that while the prosecutrix was in her garden, which was on his farm, he met her casually, and they engaged in a conversation, and she voluntarily sat down on the ground and that they mutually engaged in,,a friendly scuffle and play. He testified, and there was other evidence, that he had been drinking.

The court gave a charge which we think fairly presented the issues. He submitted the law of aggravated assault as well as assault with intent to rape. He told the jury that if they believed or had a reasonable doubt as to the prosecutrix’s willingly accepting the embraces ' or entering into a scuffle with appellant, or willingly consenting to whatever they believed from the evidence took place, to acquit. He told the jury that the specific intent to have carnal knowledge by force was essential, charged on the law of temporary insanity resulting from the voluntary and recent use of ardent spirits, and gave the following instruction:

“Moreover, if you believe from the evidence in this case, or if you have a reasonable doubt therefrom, that the physical system of the defendant, at the time of the alleged assault, was so prostrated by the recent and voluntary use of intoxicating liquors or from any other cause, to that extent as to render him impotent or incapable of ah erection, such as would enable him to commit the offense charged, of an assault with intent to rape, then you cannot convict him of a higher grade of offense than aggravated assault.”

Appellant insists that under the evidence the verdict of the jury is contrary to the paragraph in the charge last quoted, and that under the evidence of prosecutrix with reference to appellant’s organ no conviction for assault with intent to rape could be sustained. He relies on the case of Nugent v. State, 18 Ala. 521, which was a prosecution for a similar offense. Prom this we take the following quotation:

“The testimony tended to show that about the time the offense is alleged to have been committed the physical system of the accused was greatly weakened and debilitated from drink. The court instructed the jury to disregard this evidence entirely, unless the prisoner was so drunk as to be incapable of committing the offense. We do not think this instnietion was correct. It is true that the drunken condition of the accused would, neither in a moral nor legal point of view, excuse or palliate the crime, if in fact committed; but drunkenness may not only render one entirely incapable of committing the crime with which the prisoner is charged, but it may, by the prostration of his system, render him less capable of committing it. The effects, therefore, of the drunken condition of the accused upon his physical capacity to commit the crime was a matter to be considered by the jury is coming to" their conclusion whether the prisoner did the act with which he is charged. A certain degree of excitement from drink may increase the passions the cravings of which lead, to the commission of such unnatural and monstrous crimes, but drunkenness may be so excessive as to render the party partially or totally incapable of committing it. The evidence' tended to show that the prisoner was greatly weakened by drink; this was a circumstance to be considered by the jury, however light they might have esteemed it.”

There was a reversal of the case because of the action of the court mentioned. The evidence in the instant case with reference to the intoxication and the condition of appellant therefrom was in substance that fpr some days before- the occurrence he had been drinking heavily; that he was drunk at the time it happened. He testified, however, that he knew at least in part what took place. He described in his testimony his version of the circumstances in considerable detail, and stated that he afterwards went to town and attended to a business transaction, stopping however, at a haystack and going to sleep for some time. Before going to town he had a conversation with prosecutrix, also one with his son after the occurrence which he detailed in evidence. The court in this case, unlike the Supreme Court of Alabama in the case mentioned, did, under a favorable charge, permit the jury to pass upon the question. While doubtless one may become so i>hysically prostrated by reason of intoxication that he would be incapable of making an ¡assault, it is quite doubtful whether the evidence in this case justified the trial court in giving the charge upon the subject, telling the jury “that if the appellant was by intoxication rendered impotent or incapable of erection to acquit him of assault with intent to rape.” Certain it is to oúr mind that the evidence is not such as to justify either this court in deciding, as a matter of law, that his condition was such that he could not commit the offense of assault with intent to rape. On the subject we refer to the case of State v. Bartlett, decided by the Supreme Court of Iowa, reported in 127 Iowa, 692, 104 N. W. 286, from which we take the following quotation:

“As a witness in his own behalf, defendant testified that for nearly a year before the alleged assault he had been unable, by reason of impotency, to engage in the sexual relation. It is now complained of that the court did not in any way refer to such subject-matter in the instructions to the jury. No request was made for an instruction, but, aside from this, we think none was required to be given. While impotency may be a sufficient defense to an indictment for the consummated offense of rape, it will not excuse an assault with intent. 1 Wharton, Crim. Law (8th Ed.) § 552; 1 Bishop, Crim. Law, §§ 737, 738.”

From Wharton’s Crim. Law (11th Ed.) vol. 1, § 223, we quote the following:

“Whether there must be physical ability to complete the attempt on the part of the at-tempter is a question which has already been touched upon in its general relation. _ It is enough now to view it simply in. relation to rape. If there be juridical incapacity for the consummated offense (e. g., infancy), there can be no conviction of the attempt; and, therefore, a boy under fourteen cannot, according to the prevalent opinion, be convicted of an attempt to commit a rape, as principal, in the first degree. It is otherwise when the incapacity is merely nervous or physical. A man may fail in consummating a rape from some nervous or physical incapacity intervening between attempt and execution. But this failure would be no defense to the indictment for the attempt. At the same time there must be apparent capacity.”

In section 690 of the same volume it is said:

“Impotency is a sufficient defense to an indictment for the consummated offense, though not for an assault with intent.”

Though dictum so far as it relates to the offense of assault with intent to rape, the views expressed by so eminent a jurist as Judge Hurt in Hatton v. State, 31 Tex. Cr. R. 587, 21 S. W. 679, are of interest. From it we quote as follows:

“The evidence shows conclusively that, whether the shot used were sufficiently large to take the life of Johnson, appellant greatly desired and intended to do so. When in a case the question arises as to whether the accused intended to kill, the means used by him may be looked to. If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the intention must be established by other facts. But it would be a monstrous doctrine to hold that because in fact the accused did not have the ability to kill, therefore he did not intend to kill. A. attempts to rape B., but fails, because physically unable to accomplish Ms purpose. A. shoots at B. with intent to kill. He fails because Ms gun was not true to the mark, or because Ms shot were not large enough to effect his purpose. To this doctrine we cannot assent.”

In citations of authorities and expressions used we wish to make it clear that, so far as they relate to the subject of impotency, they are used with reference only to the subject under consideration, namely, of the offense of assault with intent to rape. We disclaim any intent to decide the effect of impotency in a prosecution for rape. To do so, should a case arise requiring it, it would be necessary to view the authorities in the light of our statute upon the subject of rape. Touchr ing its bearing upon the offense in hand the facts were for the jury, and the appellant, in our opinion, without doubt was accorded a charge fully as favorable as the law justified.

As explained by the trial court, the cross-examination of the appellant’s witness Earl Morris discloses no error. It appears that this witness had been near the scene of the alleged assault, and had seen the parties, if not at the time, immediately thereafter, and gave testimony relating thereto favorable to appellant. He was ashed on cross-examination several questions touching the condition of the parties and the statements by them. For example, he was ashed if a few minutes after the occurrence he did not see appellant and Mrs. Cook engaged in conversation and noticed that her clothes were muddy and that she was crying. That he at first denied this, when he was asked by the state’s attorney if he did not so testify before the grand jury; to which he replied that he did not remember. He was then shown the written statement, and asked if he did not sign the same, and he stated that he did, and the inquiry was again repeated if he did not give the testimony mentioned before the grand jury, when he said that he had stated that she was crying, but did not know whether her clothes were muddy or not, but| that later he saw her and saw that her clothes were muddy.. The same proceedings were had with reference to the condition of appellant, whether he was drunk or appeared to be drunk on the occasion of the said assault. The right to lay a predicate for impeachment of a witness on a material matter by inquiry as to his statements before the grand jury has often been affirmed. Clanton v. State, 13 Tex. App. 153, Scott v. State, 23 Tex. App. 565, 5 S. W. 142, and other eases in Branch’s An. P. C. § 177. The procedure appears to have been legitimate. The state having the right to impeach him if his testimony before the grand jury was in conflict with that given on the trial, it was necessary to lay a predicate therefor. See Branch’s An. P. C. § 179. In exhibiting to him the writing his memory was refreshed, rendering it, it seems, unnecessary to impeach him. See Branch’s An. P. C. § 160, and various cases collated. See, also, McLin v. State, 48 Tex. Cr. R. 550, 90 S. W. 1107. This procedure was different from that in Spangler v. State, 41 Tex. Cr. R. 430, 55 S. W. 326, where the state’s attorney used the testimony of his own witness before the grand jury in a manner that was criticised.

The court’s charge on the subject of aggravated assault was sufficient, rendering it unnecessary for the court to give the special charge requested upon that subject, if in fact a charge on aggravated ássault was required. Herbert v. State, 49 Tex. Cr. R. 72, 90 S. W. 653. The charge of the court was in part as follows:

“The Penal Code of this state [article 1029] further provides as follows: ‘If any person shall assault a woman with intent to commit the offense of rape he shall be punished by confinement in the penitentiary for any term of years not less than two.’
(a) “The assault spoken of must be accompanied with the specific intent to rape; that is, the party committing the assault must at the time it is committed have the specific intention on his part to have carnal knowledge of the woman he assaults, without her consent, and to have carnal knowledge of her by force, and by the use of such force as is sufficient to overcome such resistance as the woman should make, taking into consideration the relative strength of the parties and the other circumstances and facts in the case, (a)
“Now, bearing in mind the foregoing charges or paragraphs of this charge, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Dan Morris, in the county of Erath and state of Texas, on or about the 9th day of June, A. D. 1916, did then and there, in and upon Myrtle Cook, a woman, make an assault with intent to commit the offense of rape upon the said Myrtle Cook, by then and there attempting by force and without her consent to ravish and have carnal knowledge of the said Myrtle Cook, and that the said Dan Morris was then and there an adult male, then you will find the defendant guilty as charged in the second count in the indictment, and assess his punishment at confinement in the state penitentiary of this state for any number of years, in your discretion, not less than two.
“If you do not so find and believe beyond a reasonable doubt, you will acquit the defendant.
“Or if you believe from the evidence in this case that Myrtle Cook willingly accepted the embraces of the defendant, or consented or willingly engaged in a scuffle with him, if she did do so, or if she was willing to or consented to the actions of the defendant toward her, whatever you may believe from the evidence they were, at the time and place it is alleged that he assaulted her, or if you have a reasonable doubt as to whether she did or not, you will acquit the defendant.”

That part of the charge marked “a” is complained of as upon the weight of the evidence.

Another paragraph was as follows:

“Although you may believe from the evidence that the defendant assaulted the said Myrtle Cook, yet if at the time he did so he did not have the specific intent in his mind to have carnal knowledge of her by force, then ho would not be guilty of a higher grade of offense than aggravated assault.”

That part of the charge complained of which relates to force is in practically the same language as is embodied in one of appellant’s requested charges. Appellant has referred us to no authorities sustaining his contention with reference to the insufficienqy of the charge, .and in our judgment, taken in connection with the other paragraphs of the charge, the one assailed affords no just cause for complaint. See Railsback v. State, 53 Tex. Cr. R. 543, 110 S. W. 916; also Carter v. State, 44 Tex. Cr. R. 312, 70 S. W. 971; Hudson v. State, 49 Tex. Cr. R. 24, 90 S. W. 177; Payne v. State, 40 Tex. Cr. R. 202, 49 S. W. 604, 76 Am. St. Rep. 712; Sanders v. State, 64 Tex. Cr. R. 171, 112 S. W. 938.

By a plausible oral argument appellant’s counsel contends that the conviction should be overturned on account of the insufficiency of the evidence to sustain it, pointing to the conduct and conversations by the prosecutrix with the appellant on and prior to the occasion of the alleged assault and subsequent to that date, contending that from these matters the inference that appellant’s advances and conduct toward her were not objectionable to her, but were complained of only after and because she concluded that the affair had been observed by appellant’s son and communicated by him to her husband. This evidence presents a theory conflicting with the express statements and conduct which were probably admitted by the court as res gestae, by the scratches and «bruises upon her person exhibited immediately after the occurrence, by her agitated and apparently distressed condition described by appellant’s son, and other witnesses who saw her in a very short time after the occurrence, the condition ofl her clothes, and the ground at the scene of the alleged encounter. These conflicting theories having been solved against appellant by the jury and sanctioned by the trial judge, that solution is binding upon the appellate court.

The judgment is affirmed.
      <S=>For other oases see same topic and KEY-NUMBEB. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    GOMEZ v. STATE.
    (No. 5031.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 30, 1918.)
    1. Animáis <§=10 — Proof or Ownership op Cattle.
    Under Acts 33d Leg. c. 69, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7160), making unrecorded brand no evidence of ownership, in prosecution for cattle theft properly certified copy of registration of alleged brand of owners of stolen cattle in county of their residence was admissible to prove ownership, whether as partners or jointly as individuals.
    2. Criminal Law <§=291 — Trial — Withdrawal op Announcement op Ready — Filing op Plea.
    Where trial court offered to permit defendant to file plea of former conviction as of date before making his announcement of ready, but refused to permit him to withdraw announcement, defendant refusing to file plea for that reason, there was no error.
    3. Criminal Law <@=889 — Failure to Return Verdict on One Count — Correction.
    In prosecution for cattle theft resulting in verdict of guilty, jury’s failure to find defendant not guilty of receiving stolen property, as court had instructed at defendant’s request, held not erroneous, in view of their subsequent finding to that effect pursuant to court’s repeated instruction and their verdict of not guilty.
    4. Larceny <§=40(10) — Pleading and Proop —Variance—Ownership.
    In prosecution for theft of cattle from two owners,'defendant was not entitled to acquittal because proof showed owners owned property as a partnership and not as individuals only.
    5. Criminal Law <@=1169 (5) — Harmless Error-Evidence.
    In prosecution for theft of cattle from father and son, where son testified he had conversation with father, but defendant objected to showing conversation was about cattle, which was not elicited by state, and proceeded himself to show it, there was no reversible error, court having instructed not to consider evidence defendant developed.
    6. Larceny <@=62 (2) — Lack op Consent —
    Circumstantial Evidence.
    In prosecution for theft of cattle from father and son, father being dead by trial, his want of consent to taking could be proved by circumstantial evidence.
    7. Larceny <§=34 — Lack op Consent.
    Defendant was not guilty of larceny of. cattle from father and son unless taking was without consent of father as well as of son.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Gregorio Gomez was convicted of cattle theft, and he appeals.
    Affirmed.
    W. R. Perkins, of Alice, and James B. Wells and Milton H. West, both of Brownsville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of cattle theft and assessed the lowest punishment The indictment was in two counts. The first alleged the theft of three head of cattle by appellant on or about May 20, 1914, in Jim Hogg county, from the owners Manuel Guerra and Horatio P. Guerra. The other count alleged the fraudulent receiving of said cattle from some person to the grand jurors unknown. The court submitted solely the first count. He did not submit the second count for a finding at all, but peremptorily instructed the jury to find him not guilty on that count.

The alleged owners were shown to be partners in the ownership of said cattle and other property. They were father and son. Some time before the trial of this case the father, Manuel Guerra, died. The alleged owners had lived in Starr county and had their cattle ranches and cattle in that county. Appellant lived in Jim I-Iogg, an adjoining county.

The evidence shows that the said owners used the figures “10” as their brand on cattle, which wás duly recorded in the county of their residence. Appellant is shown to have been in possession of said three head of cattle in Jim Hogg county on or about May 20, 1914, and on that date sold them, with some others, to one Garza. It was also shown that at the time appellant sold these cattle to Garza that the said brand had been burned over just a few days prior to that time. The burning consisted in extending the figure “1” down some distance and adding another “0” below the figure “0” in the brand to make the burned brand “18.” This was sworn by several witnesses and in no way contradicted. The next day or two after appellant sold these cattle to Garza, Garza sold them to another party. When the burning of these brands was carefully examined, and it was ascertained that the said owners’' brand had been just burned over, the owners were informed, and at once proceeded to procure and have the cattle returned to them. However, by the owners’ consent, one of the head was slaughtered so as to preserve and show the original and burned brands, which was done on the trial by that portion of the hide on which the burn was. The alleged stolen cattle were shown to be the property of the alleged owners.

The questions to be decided are raised by bills of exceptions. The first claimed that the court erred in admitting in evidence a properly certified copy of the registration of the alleged owners’ brand in Starr county, the county of their residence. This was clearly admissible under the act of March 31, 1913, p. 129 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7160), and the decisions, to prove ownership of the alleged owners. Turner v. State, 71 Tex. Cr. R. 477, 160 S. W. 357; Turner v. State, 75 Tex. Cr. R. 325, 170 S. W. 1096; Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 53; Atterberry v. State, 19 Tex. App. 406; Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566. It would make no difference, under the allegations and the law, whether the alleged owners of said cattle owned them as partnership property or jointly as individuals without being pártners. Atterberry v. State, supra.

The appellant’s next bill complains that the court refused to permit him to withdraw his announcement of ready for the purpose of filing a plea of former conviction as of date before making such announcement of ready. The bill shows that, while the court refused to permit him to withdraw his announcement, the court offered to permit him to then file such plea, but he refused to file it because the court would not let him withdraw his . announcement. This is the only thing that appears in the whole record on this subject. The bill presents no error.

His next bill complains of the action of the court about what was done about the verdict. It shows that the jury brought in a verdict finding him guilty as charged, and assessed his punishment at two years’ confinement in the penitentiary. They failed at that time, as the court had instructed them at appellant’s instance, to find him not guilty of receiving stolen property. The explanation of the bill by the court was that, when the jury returned the verdict as stated in open court, the court again read to the jury the special instruction requested by appellant which he had given them to return a verdict of not guilty on the second count in the indictment. The court thereupon wrote out a verdict of not guilty on the second count. The jury heard the court read it to them, and read said special' instruction, and they then presented that verdict finding him not guilty on the second count as instructed by the' court. This presents no error at all.

The court did not err in refusing to give' his special charge peremptorily instructing the jury to acquit; nor in refusing his other charge requiring the jury to peremptorily acquit him because the proof showed that the owners owned the property as a firm and partnership and not as individuals -only.

The proof showed that just after Garza, who purchased them from appellant, sold the cattle, and they were discovered to have had the said owners’ brand burned over so recently, the sheriff took them in charge and had them taken to Hebronville, the county seat of Jim Hogg county. Horatio P. Guerra, one of the owners, testified in substance, upon direct examination, that the cattle were taken without his consent. The appellant then in cross-examination of him proved by him that Mr. Thompson, the sheriff of Jim 1-Iogg county, who had taken charge of the cattle as stated, wired him and his father from Hebronville that he had some cattle belonging to them. These cattle were those for the theft of which appellant was indicted. And had him further swear:

“To the best of my knowledge and belief I can swear that my father never sold these particular cattle at any time to any one; I can swear that so far as I know. Yes; I know of my own personal knowledge, because we had a conversation about it at the time. I beg your pardon, I was telling how I knew. I don’t see how I can know otherwise. Yes; I know he did not sell them. I know that from my conversation I had with him. That i's the only way I know it. I could not know it otherwise.”

On redirect examination the witness testified that after he received the said wire from the sheriff that he went to Hebronville; that before he went he had a conversation with.his father about these cattle, and that-he then went to Hebronville and saw these cattle, and they were restored to his father and himself.

Appellant has two bills of exceptions about this testimony. One states that over his objections the state was permitted to ask said witness if he had a conversation with his father before he went to Hebronville. He answered that he did. Appellant’s attorneys then asked him, “About this matter?” He answered, “Yes, sir.” The state asked, “About these cattle?” and he said, “Yes, sir.” The other shows that the state stated to the witness this: “Now, without stating what you said to your, father or what your father said to you — I don’t want to ask you what the conversation was — tell the jury where' you went after you received that telegram from Mr. Thompson.” Answer: “I went to Hebronville.” Question: “Before going to Hebronville state whether or not you had any conversation with your father.” The bill states then that he objected to this question for various reasons. This bill does not show that he objected to any answer of this witness at all — it was to this one question. The court’s qualification of the bills makes this explanation: That the state’s counsel when questioning the witness explained to him that he did not desire him to state anything that he said to his father or that his father said to him, or even the- subject-matter of the conversation, but merely asked him if he had a conversation with his father; that counsel for appellant objected, and himself proceeded to ask the witness what the conversation was about; the witness answered the question of appellant’s attorney that the conversation was about the cattle in question; that appellant’s counsel also brought out from said witness that, to the best of witness’ knowledge and belief and he would swear positively, his father did not give any one permission to the take the cattle in question; and after doing so counsel for appellant requested the court to instruct the jury to not consider the testimony of said witness as to whether his father had given any one permission to take said cattle and that the conversation was about said cattle. The court gave the jury such instruction at the request of appellant’s counsel, striking out the evidence that the counsel for appellant himself developed; and that again the counsel for the state merely asked the witness if he had a conversation with his father before leaving fqr Hebronville. Whereupon appellant’s counsel again brought out the fact that the subject-matter of the conversation ' was the cattle in question, and no objection was made to the evidence at this time; that witness had had a conversation .with his father, but counsel for appellant objected to showing that the conversation was about the cattle in question, which counsel for appellant showed himself; that the court had already instructed the jury not to consider it. Tire appellant accepted the bill as thus qualified by the court, and as qualified the bills do not show reversible error.

The statute (article 457, C. C. P.) is, where property is owned in common or jointly by two. or more persons, the ownership may be alleged to be in all or either of them. It is true that it has been held that where the ownership is alleged to be in two persons the want of consent of both must be shown. But it is clearly settled that want of consent may be proven by circumstantial evidence if the alleged owner is dead. ■ See cases collated in 2 Branch’s An. P. C. p. 1327. It has also repeatedly been held that where an indictment alleged the ownership to be in one party, and the proof showed that it belonged to a partnership, there was no variance between the allegation and proof, and the court could properly charge the jury that the state need not prove the want of consent except as to the one in whom ownership was laid. As stated, Manuel Guerra was dead at the time of this trial. In addition to the testimony of the other owner, Horatio P. Guerra, the whole trend of the testimony by many eircumstances tends to show, and authorizes the jury to believe, that the property was taken without the knowledge and consent of the deceased owner too. The court’s charge properly required the jury to so believe before they could find appellant guilty. And the court also in his charge applied the law of circumstantial evidence on this point. Taking the testimony as a whole, it is reasonably certain that the property was taken without the deceased’s consent.

The judgment is affirmed.
      <2^>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    HOLLAND v. STATE.
    (No. 4697.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Criminal Law <@=>814(13) — Instructions—
    Presumption op Insanity.
    In a prosecution for manslaughter, it was not error, where the evidence failed to show that defendant had ever been adjudged insane or that his insanity, if any, was permanent, to refuse to charge on the presumption of insanity at the time of the offense.
    2. Criminal Law <@=>779 — Evidence — Instructions.
    In a prosecution for homicide committed as the result of an alleged conspiracy to assault deceased, it was error to fail to charge that acts and declarations of a conspirator in defendant’s absence was inadmissible to establish a conspiracy.
    3. Homicide <@=>305 — Instructions.
    In a prosecution for manslaughter alleged to have been committed following a conspiracy between three brothers to assault deceased, an instruction that if defendant’s brother knew nothing of the difficulty between defendant and deceased, “and” knew nothing of any conspiracy, defendant should be acquitted, was erroneous, since he might have known of the difficulty, and still not entered into the conspiracy.
    Appeal from District Court, Callaban County; Joe Burkett, Judge.
    Norvin Holland was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. E. Cunningham, of Abilene, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is a second appeal from a conviction for manslaughter. The decision in the Gr'st is reported in 192 S. W. 1070. While the proof on this trial was perhaps clearer and stronger against appellant than on the first, a sufficient statement of the case was made on the first, so as to make a statement now unnecessary. None of the questions raised on the first appeal arise on this. There are but few questions to be passed upon.

Appellant contends that the court below erred in not charging the jury that, if they believed from the evidence that before the commission of the offense charged the proof showed that he was insane, and his insanity was of a permanent character, then the law presumed that he was insane at the time the offense was committed, unless the state had shown by a preponderance of evidence that the defendant had recovered from his insanity before he committed the act'in question. In some cases a charge of this character is necessary, but this case does not come within that rule. Some of the evidence herein may have tended to show that appellant may have been somewhat insane because of severe illness some five or six years before he is charged with the commission of this offense, but it does. not show that he had ever been adjudged insane, nor that the character of his insanity was permanent. The state contended he was never insane. The evidence did not authorize or justify the court in charging as claimed by appellant. Neither did the court err in his general charge on the subject of insanity, and in submitting that question to the jury. His charge was substantially in accordance with the charges on that subject many times approved by this court.

The state proved by two witnesses, Gamble and Ford, declarations made by Dorman Holland to them, in the absence of appellant, some few days before Dorman Holland. killed deceased. This evidence was clearly admissible on the theory, amply supported by the testimony, that the three brothers, appellant and Dorman and Hill Holl'and, entered into a conspiracy to do deceased great violence. The court in his charge failed to instruct the jury that they could not consider the acts and declarations of Dorman Holland, made in the absence of appellant, for the purpose of establishing a conspiracy. Appellant properly objected to the court’s charge on that account,, and was allowed a proper bill. The court erred in not so instructing the jury. *

Appellant has another objection to the court’s charge, which, we think, also shows error. The charge is to this effect: That if the jury believed from the evidence that Dorman Holland knew nothing of the difficulty between the defendant and deceased, and was not concerned and did not know of any conspiracy or agreement, and was not a party to any conspiracy or agreement, to whip the deceased, etc., if there was any such conspiracy, then in the balance of the charge submitting that under those circumstances, in effect, he would have the right- to kill the deceased in protection of Norvin, his brother. It would be wholly unnecessary for the jury to believe that Dorman Holland knew nothing of the said difficulty if, as a matter of fact, he did not enter into the conspiracy. He might have known the fact, and still not have entered into the conspiracy. The court in his charge couples both of these things with the conjunctive “and” that he must have known nothing of the difficulty and was not concerned, etc., in the conspiracy. This charge should be corrected on another trial.

Reversed and remanded.
      <g=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOLLAND v. STATE.
    (No. 4630.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Homicide <@=>301 — Instructions—Defense or Relative.
    In submitting question of defense by accused of Ms brother, it is proper to instruct that, if the jury believed that defendant killed deceased in defense of his brother, or if they had a reasonable doubt thereof, to acquit.
    2. Criminal Law <@=427 (5) — Evidence—Conspiracy-Declarations of Conspirators.
    In a prosecution for manslaughter, declarations of alleged conspirators in defendant’s absence to prove a conspiracy to assault deceased cannot be considered, before a conspiracy is found beyond a reasonable doubt.
    8. Criminal Law <@=>779 — Instructions— Declarations of Oodefendants.
    In a prosecution for manslaughter resulting from an alleged conspiracy to whip deceased, an instruction that the acts and declarations of conspirators could only be considered on the question of intent was improper, as being too restrictive.
    4. Homicide <@=>196 — Evidence—Admissibility.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    •In a prosecution for manslaughter, claimed by defendant to have been committed in defense of his brother, evidence as to his. brother’s insanity was admissible on the question of defense of a relative.
    Dorman Holland was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. F. Cunningham, of Abilene, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for manslaughter, and is a companion case of that of Norvin Holland this day decided. 206 S. W. 88. This appellant shot and killed the deceased, for which he and Norvin Holland were convicted of manslaughter. A sufficient statement of the case is made in the opinions in the two appeals of Norvin Holland, the first in 192 S. W. 1070, and the other this day decided. The evidence in this case was by the same witnesses, and substantially the same as in the Norvin Holland Cases, except that in this case there was no testimony as to the claimed insanity of Norvin Holland.

There are but few questions raised in this case. One is, appellant complains of the court’s charge, where he submitted the question of appellant’s right to kill the deceased in defense of his brother Norvin. He told the jury, briefly stated, that if they believed Dorman Holland knew nothing of the difficulty between bis brother Norvin and the deceased, or was not a party to or concerned in said conspiracy, etc., and if they believed the other requisites necessary, showed he killed him in defense of his brother to acquit. The difference between the charge in this case and in the Norvin Holland Case is noticeable, in that, as shown in the Norvin Holland Case, he connected conjunctively Dorman Holland’s knowledge of the difficulty and his entering into the conspiracy. In this he used the disjunctive “or.” The charge complained of in this ease is materially different in that respect from what it was in the Nor-vin Holland Case, and we think appellant’s objection thereto may not present reversible error. However, we suggest that on another trial the question of appellant’s knowledge of the difficulty between Norvin Holland and deceased might properly be omitted from the charge. His knowledge of the difficulty might be a matter of argument before the jury in connection with other facts, as tending to show he entered into the claimed conspiracy.

We think the court’s charge did not shift the burden of proof from the state to appellant in submitting the question of the defense by appellant of his brother Norvin. It would be proper, however, for the court in submitting that question, as is customary in such charges, to tell the jury that if they believed, etc., that he killed him in defense of his brother, or they had a reasonable doubt thereof, to acquit him.

Appellant property raised and preserved his objection to the refusal of the court to give this special charge, to wit:

“Gentlemen of the Jury: You are instructed that you cannot consider the acts and declarations of Norvin Holland and Hill Holland, made in the absence of defendant, for the purpose of proving a conspiracy; but you must find from the evidence beyond a reasonable doubt that a conspiracy was formed before you would be permitted to consider said acts and declarations of said Norvin Holland and Hill Holland for any purpose whatever.”

The court gave no charge covering this point. The charge enunciates a correct proposition applicable to the evidence in this case, and the court erred in refusing to give it.

The court did not err, however, in refusing to give this charge, requested by appellant:

“Should you find from the evidence beyond a reasonable doubt that a conspiracy was formed to whip the deceased, Lee Clement, and that the defendant was a party to said conspiracy, then you could only consider the acts and declarations of Norvin Holland and Hill Holland as circumstances to be considered by you in throwing light upon, illustrating, and making manifest the purpose, object, motive, and intent of the parties, and for no other purpose.”

It would have been improper for the court, with the evidence as it was in this case, to have restricted the jury to the consideration of said evidence of the acts and declarations of Norvin and Hill Holland as was sought by this special charge. The testimony of the acts and déclarations of Norvin and Hill •Holland, if a conspiracy was proven as against appellant, should not have been so restricted as called for by said charge.

Appellant sought to introduce substantially the same, testimony as to the claimed insanity of Norvin Holland as was introduced in the trial of his ease. The court excluded this testimony, because, as stated by him in allowing appellant’s bills on the subject, such testimony, was immaterial, for appellant would have the same right to defend his brother if sane, the same as he would if insane. Appellant did not present this question in his brief herein. The court’s statement of why he excluded the testimony is correct, and still we think the testimony was admissible, for it might affect appellant’s action in the killing. He might act more quickly in defending, if he did, an insane brother,, if so, than of a sane brother.

Eor the error abqve pointed out, the judgment is reversed, and the cause remanded.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    VAUGHN v. STATE.
    (No. 5108.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Gaming <®==>98(2) — Shooting Cbaps — Evidence.
    Evidence on prosecution for shooting craps held insufficient for conviction.
    Appeal from Taylor County Court; B. A. Cox, Judge.
    Espia Vaughn was convicted of shooting craps, and appeals.
    Reversed and remanded.
    H. Rob Keeble, of Abilene, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted in the county couft of shooting craps; his punishment being assessed at a fine of $15. Several propositions are presented for discussion, but the main question is presented from the facts and special charges, to wit: The evidence is not sufficient to support the conviction, and the refused instructions to the jury that they should acquit for want of sufficient evidence.

The state’s' ease is made by the testimony practically of the witness Dodson, sheriff of Taylor county. He arrested appellant at a place he denominates the “Flats” in the city of Abilene. He went to a house where there were negroes congregated and listened at the door; heard the snapping of fingers and the sound of rolling dice and talking. 1-Ie then went to the side of the house, where there was a window light broken out and the curtain pulled down. He pulled the curtain aside and looked in, and saw eight or nine negroes in the room. Appellant was at one end of the table, and Luther Graves at the other. Appellant had a bottle of whisky under his hand in front of him. Luther Graves had money on the table in front of him, and money in his hand. Just as this witness looked in a pair of dice were rolled on the table. They came from the direction of appellant. As the witness looked in he saw appellant pick up the dice. He further stated he did not hear appellant make any remark about betting, or playing, or shooting, but could not hear well enough to fully understand what was said. He didmot see the defendant throw-any dice. When appellant saw witness, he picked up the dice. This was the only time he saw dice in appellant’s hand. He had no money in front of him; nothing but a bottle of whisky under his hand. This was in front of him, and not in the middle of the table. The money was in. front of Luther Graves, and some under Graves’ hand. It was not in the middle of the table. He could not say,that the defendant was snapping his fingers. He just heard that before looking in the window; did not know who was doing it.

Appellant had no money on his person. Graves had all the money that was discovered after the officers entered the room. The witness Lilius testified substantially as did the sheriff. Foster, Allen, and appellant all testified practically to the same state of facts: That they were all in the room that evening, eight or nine negroes altogether; that they did not gather for any particular purpose, they were talking, it was cold outdoors, and there was a fire in the room, and that negroes often came there and talked; that no crap game of any kind took place there that day. Luther Graves had a pair of dice before the officers came in, and was trying to get somebody to play with him. He had money on the table in front of him and some in his hands. He said he wanted to win some money to go to San Angelo. Nobody else in the room had any money that witness knew of. Appellant had a bottle of whisky, and before the officers came somebody suggested, “Why don’t you bet your whisky?” Luther Graves said that whisky would not take him to San Angelo. Just a few minutes after that Mr. Dodson looked in the window and saw them, and came in and arrested appellant, and took him before a court of inquiry. Neither Luther Graves nor appellant played craps there that day, or made bets of any kind. The room they were in was the room occupied by the witness Foster. Allen testified practically to the same state of facts as did appellant. Appellant said they were in John Foster’s room, with eight or nine other ne-groes. Graves was there, and kept trying to get somebody to shoot dice with him. He kept throwing the dice on the table and snapping his fingers, and asking for somebody to play with him. “I had a bottle of whisky with me, and somebody in the room suggested that I- bet it; but Luther said he did not want to play for whisky. Nobody there played with Luther, and there was no crap game or betting whatever.”

This is the entire case. Wle are of opinion the evidence is not sufficient, and the court should have directed an acquittal. There are quite a number of cases in point. Among others, we cite Hale v. State, 49 Tex. Cr. R. 105, 90 S. W. 654; Fallwell v. State, 48 Tex. Cr. R. 35, 85 S. W. 1069; Ables v. State, 49 Tex. Cr. R. 292, 92 S. W. 414; Looper v. State, 56 Tex. Cr. R. 498, 120 S. W. 880; Thomas v. State, 66 Tex. Cr. R. 326, 146 S. W. 878; Berry v. State, 85 S. W. 14.

The judgment is reversed, and the cause is remanded.
      ^—.T?m. other cases see same topic and KEY*.NUMBER in all Key-Numbered Digests and Indexes


text:
    REIMER v. STATE.
    (No. 5102.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Larceny &wkey;>68(l) — Of Cattle — Question fob Jury.
    In prosecution for stealing one head of cattle belonging to unknown owner, defense being that defendant killed the animal under the authority and for the benefit of his master, evidence held insufficient to warrant submission of question of defendant’s guilt.
    2. Larceny <&wkey;>57 — Of Cattle — Fraudulent Intent.
    Where servant was directed to kill one head of cattle belonging to his master, evidence that he made a mistake, and killed an animal belonging to another, would not show fraudulent intent; the color of animal directed to be killed and that killed being about the same.
    Appeal from District Court, Hutchison County; W. R. Ewing, Judge.
    Hugo Reimer was convicted of stealing one head of cattle belonging to an unknown owner, and he appeals.
    Reversed and remanded.
    Frank Willis, of Canadian, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted in the district court of Hutchison county of cattle stealing; his punishment being assessed at two years’ confinement in the penitentiary. The indictment charged appellant with stealing one head of cattle belonging to an unknown owner.

The facts, briefly stated, show that H. W. Pitts owned a ranch a short distance from the county seat. Pitts lived in town, and. appellant was an, employe on his ranch. The witness Hedgecoke testified he lived in tlem-ons, Hutchison county, and was running a store during the year 1917; that appellant brought three quarters of beef to his store. This beef was brought for the account of Mr. Pitts, and witness gave Pitts credit for it on the books. Pitts was trading with him; lie being engaged in tbe mercantile business. When this trade was made with witness by Pitts, he directed appellant to hill a two year old animal and bring a specified amount of the meat to Mr. Hedgecoke. This appellant did, and Hedgecoke gave Pitts credit for this amount on his account at the store. Somewhere not a great ways from the ranch house of Mr. Pitts it was discovered that an animal had been butchered or killed. A fresh hide was found in Pitts’ granary, wliere appellant lived. There .was no fresh meat at the place. Appellant had no interest in the animal that he killed, if he killed the one that was found where the evidence shows one was killed in the pasture. He did kill one evidently for Mr. Pitts, and carried three quarters of it to Hedgecoke’s store and delivered it to him for Mr. Pitts. The state proved this, and Pitts testified to the same effect. The testimony also shows appellant had no interest in the meat delivered to Hedgecoke. Pitts testified that he had cattle running around his place, some cows, calves, heifers, and steers, about 180 altogether. He had been living at the ranch but had moved into town. The ranch was superintended by appellant. He left the ranch early in October, and instructed appellant to butcher a beef. He told appellant what to do with it after he butchered it, and witness says he knew what he did with it. He delivered the beef to Mr. Hedgecoke at his store. This seemed not to be a controverted, but an admitted, fact. He also, stated appellant had no interest in it, and received no proceeds from the sale of the beef. Pitts says he let appel> lant have $6.50 worth of the béef. There is some question as to whether this was Pitts’ animal, but there was no question that appellant killed a beef by the authority and under the orders of Mr. Pitts, which has been previously mentioned.

Appellant requested, under this condition of the record, an instruction to the effect that the corpus delicti was not proved, and that the evidence was insufficient to support the submission of appellant’s guilt, especially in view of the testimony showing that he had killed the animal under a claim of right, and by the authority and for the benefit of Mr. Pitts. There is some contention that this may not have been one of Mr. Pitts’ yearling heifers; but, as we view this record, this would be immaterial. The color was pretty much the same as that suggested by Mr. Pitts to be killed, and, if appellant made a mistake in getting the wrong animal, it would still eliminate the question of fraud. A mistake of fact would not support fraudulent intent. There was no evidence that anybody lost any cattle. This was the only one found, and no one set up any claim to it, and it was killed, as before stated, under the direction of Mr. Pitts. While Mr. Pitts was not present and pointed out no particular animal, he described the animal for appellant to kill. Pitts had two or three animals of practically that description. We are of opinion the court should have so instructed the jury, and we are further of opinion that the evidence is not sufficient to show a fraudulent intent. Lane v. State, 45 S. W. 693; Melton v. State, 56 S. W. 67; Heskew v. State, 18 Tex. App. 275; Miles v. State, 1 Tex. App. 513; Cameron v. State, 9 Tex. App. 332; Moore v. State, 28 Tex. App. 378, 13 S. W. 152; James v. State, 32 Tex. Cr. R. 511, 24 S. W. 642. These questions we think dispose of this case correctly. This conviction should not have occurred under this record.

The judgment is reversed, and the cause remanded.
      (&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    NOLAN v. STATE.
    (No. 5112.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Rape <®=23, 35(2) — Age op Peosecuteix —Allegation and Proof.
    In prosecution for carnal knowledge of female under 15, in violation' of Pen. Code 1911, art. 1063, it was neccssaiy for state to allege and prove that prosecutrix was under 15 at time of offense.
    2. Rape <®^52(4) — Statutoey Rape — Age of Peosecuteix — Sufficiency of Evidence.
    In prosecution for carnal knowledge of female under 15, in violation of Pen. Code 1911, art. 1063, testimony of doctor, who examined prosecutrix, that he would take her to be less than 15, her relatives being available as witnesses, but not testifying to her age, was insufficient to prove case beyond reasonable doubt.
    Appeal from District Court, Denton County; John Speer, Judge.
    Hilliard Nolan was convicted of rape, and he appeals.
    Judgment reversed, and cause remanded.
    T. B. Davis and Sullivan, Hill & Minor, all of Denton, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction is for rape; the punishment being assessed at confinement in the state penitentiary for á period of five years. ’

The crime charged consists of carnal knowledge of a female under 15 years of age. That was the sole face of the statute (article 1063, P. C.) which was submitted to the jury. The only evidence as to the age was that of a doctor, who examined the prosecutrix, and who, at the close of his testimony, was asked by the state’s attorney the following question:

“She is less than 15 years of age? A Yes, sir; I would take her to be.”

It is apparent from the record that there were available a number of witnesses, who could have testified definitely to the facts with reference to the age of the prosecutrix. She, her uncle, and her cousin were used as witnesses for the state. None of them testified to her age. Before the case went to the jury appellant directed the attention of the trial court and counsel for the state to the meager quantum of evidence upon the subject of age, by requesting an instructed verdict, but no further evidence was introduced on the subject. It was necessary to allege and prove that the prosecutrix was under 15 years of age at the time of the alleged offense. In our opinion the state did not discharge the burden upon it to prove a case beyond a reasonable doubt by the evidence quoted. The case of Lawrence v. State, 32 S. W. 539, was one in which the prosecution was for statutory rape, and the age of consent was 12 years. Both the father and mother of the prosecutrix testified that she was not 12 years old, but were unable to give her age. A physician testified that from her appearance and development he thought that she was 10 or 12 or more. The case was reversed, because the proof was insufficient. In the present case the state’s witnesses, who, from their acquaintance with and relationship to the prosecutrix, were in position to know her age, were not interrogated upon the subject by the state. The only evidence upon the subject given was by the doctor, who is not shown to have had any intimate acquaintance with her, but apparently based his answer, “Yes, sir; I would take her to be,” upon the fact that he had made a physical examination of her. The evidence is less definite than that in the case of Lawrence v. State, supra, and we think insufficient to support the conviction.

The judgment of the lower court is reversed, and the cause remanded.
      igcssPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GREEN v. STATE.
    (No. 5103.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Husband and Wife <$^304 — Desertion of Wife — Statute.
    Husband, who left wife and daughters in home after endeavoring to persuade wife to remove with him that he might escape drink habit, and who, after removal, remitted what money he could spare, and offered to deed home to wife, who, with daughters, was making $80 a month, did not violate statute denouncing wife desertion.
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Ed Green was convicted of wife desertion, and appeals.
    Judgment reversed, and cause remanded.
    T. E. Hunter, of Wichita Falls, for appellant.
    E. B. Hendricks, Asst Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under a charge of wife desertion. The facts seem to be practically uncontroverted. The wife testified that she and appellant had been married about 17 years, the latter 3 years of which time they had lived in Wichita Falls. They had two children, one over 15 and the other just over 14 years of age. They had moved to Wichita Falls and got along well together for some time after they located at that point. The wife says:

“Mr. Green and I had no trouble'until about a year before be deserted us, and trouble began then because be was drinking. He drank up all he made. At the time be left we had a five-room modern bouse on a regular size lot and a vacant lot adjoining it.”

This property was worth $1,800, with an indebtedness hanging over it of $500. Before appellant left home he went over the matter several times with his wife in regard to leaving Wichita F'alls. In these conversations he told his wife that he had gotten in such condition he could not let whisky alone; that he must get away from it. She declined to go with him, and declined to sell their property. She says:

“I did not consent to sell our borne, because I was afraid he would squander the money.”

She further testified:

“He left, and I stayed in charge of the place and control of it. I never did ask him to sign any deed; never wrote or said anything about it to him after be left. However, I did sell the vacant lot; be signed the deed to the vacant lot, which was sold to my father for $200. I took the money and paid most of it on the notes that were against our home. He did not ask me for any of the $200. He signed the deed to the vacant lot without a word, and never asked for the money. This was just ‘a short time after he left.”

Quoting further:

“After he left Wichita Falls he went to Chil-dress. While at Childress he sent me some money, but very little. He would send the money in registered letters, and I have no idea how many I have gotten. There were only $5 or $10 in each letter. I do not know how often they came. I did not keep count of them. Sometimes I would get one a month; sometimes two or three. He has sent money more regularly since he has been in Electra. I have preferred living in Wichita Falls, and had objected to move because I have believed that it was better for the girls to stay here.”

She further says:

“It has been more than two years since he left us. I went to Mr. Greenwood, who was county attorney at that time that Ed Green left us, and tried to file a complaint against him; but Mr. Greenwood told me that there was nothing to it, and I could not prosecute him.”

One of the daughters testified:

“My mother and father got along together all right when they lived together, and did not have any trouble that I know of.”

It is also in evidence that appellant talked to his wife several times about leaving Wichita Falls and going somewhere where he could save his money, but she declined to go; and it is also in evidence that he went away in order to make money that he might assist in the support of his family. It is also in evidence that the wife and two daughters worked and made $80 a month, which they used in support of the family. Appellant testified:

That he had no property of his own, unless it might be said he owned one-half interest in the home where his wife and daughters lived. That he left home in January, two years before he was testifying, because it had gotten so he could not do any good in Wichita Falls. The drink habit had grown on him until it looked like he could not control himself. “After I was convinced that I could not stay and could not leave whisky alone, I talked to my wife about it; in fact, I talked about it several times. I tried to reason about the matter with her. I explained to her before we came to Wichita Falls, and even the two or three years that we were here, we had been able to save a little money to pay on a home, and after that I got in a habit of drinking and spent all of my money. The only way I thought I could get out of it was to leave town and get away from whisky. She objected to that, and did not even consent to sell the place after I agreed to allow her to keep the money. Neither would she agree to leave Wichita Falls with me. I went to Childress and began to do better. I tried to send her money every week. I sent her $5 or $10 at a time. It was all I could spare. I had a guaranty of about $15 per week for my work. I had to pay board and other expenses, which made it hard for me to send money; however, I sent her all I could spare. I have never in my life refused her money when I had it. I have sent her more money since I have been at Electra, because I have had more work and have made more money. At the time I left home I had no money; but I had a little credit at the Factory Grocery store. I told her that she could get groceries there on my account, and that I would pay for them. Mr. Ray ran that store, and I made arrangements with him to let her have some groceries. I have always' been willing to live with my family, and desirous of supporting them; but I could not afford to live here, and my wife has always refused to leave here. I told her at the time that I left the home place was hers, and that she could do with it as she wished. At the time she sold the lot I signed the deed gladly, and did not ask for, nor did I want, any of the money.- I would as gladly have signed the deed to the other place as I did that one; in fact, I so told her. I have always been willing for her to have the place, and would have given a deed for it, if she had wanted it, and I am willing for her to have the place, and will sign a deed this minute to her for all the interest that I have in the place. I want to do everything for her and the children that I am able to do.”

This is the substance of the case on the facts. Without going into the questions of charges and. exceptions to the charge of the court, and incidental matters, they are sufficiently presented under the record, and appellant, among other things, asked a special charge to instruct the jury to acquit because the facts did not show a willful desertion under the statute. We are of opinion this charge should have been given, and further of the opinion that the evidence does not show a violation of the statute. The desertion, if it be termed a desertion, was not willful. He sent his wife what money he had and could spare after he left, and this seems not to be questioned. He offered to make a deed to her to all the property. She admits that he was sending her money to assist in support of the family, and his statement that it was’ the best he could do under the circumstances is not questioned. She testified that she and her daughters were making $80 a' month, and had no rent to pay; that he was sending from $5 to $10 or more per week in addition to the above. It would hardly be questioned that he did not desert her, because he did his best to induce her to go with him where they could make a 1'iving, but she declined. Under all these circumstances we are of opinion that this judgment should not be-permitted. The statute has not been violated as it was intended to operate by the act of the Legislature. See Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166; Moore v. State, 78 Tex. Cr. R. 270, 180 S. W. 1100. The same view of the law seems to have been taken by the Missouri court. State v. Loving, 184 Mo. App. 82, 168 S. W. 339; State v. Broyer, 44 Mo. App. 393; State v. Greenup, 30 Mo. App. 299; State v. Doyle, 68 Mo. App. 219.

The judgment will be reversed, and the cause remanded.
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text:
    WRENN v. STATE.
    (No. 4884.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Indictment and Information <@=>144 — Motion to Dismiss — Propriety of Denial.
    Where defendant in county court was convicted of gaming on complaint sworn to before assistant county attorney, and information based thereon filed originally in county court, overruling of defendant’s motion to dismiss, setting up prosecution was for same offense for which complaint had been filed in justice court, such complaint not being attached to motion and no evidence being introduced on such plea, was not reversible error; after introducing evidence on point, defendant not calling for ruling or asking charge thereon.
    2. Criminal Law <§==>1111 (3) — Appeal — Bill of Exception — Acceptance as Qualified.
    Defendant’s bill of exception to overruling of motion for continuance, accepted by defendant as qualified by court; is binding on defendant.
    3. Criminal Law <@=>598(2) — Continuance —Absence of Witness — Diligence.
    Defendant’s motion for continuance on account of absence of witness was properly overruled, where no diligence to secure attendance of witness was shown.
    Appeal from Hunt County Court; A. J. Gates, Judge.
    Ollie Wrenn was convicted of gaming, and appeals.
    Judgment affirmed.
    Earl McAlester and Montrose & Robey, all of Greenville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for gaming, and is a companion case of No. 4809, by the same appellant, the decision of which is reported in 200 S. W. 844. That decision was well considered. There is no material difference between that case and this in the questions raised. We ■will briefly state the facts as to the main question raised.

On Sunday evening, June 3, 1917, Mr. Akers, the sheriff of Hunt county, called Mr. McWhirter, a justice of the peace, at Green-ville, and told him he wanted to file some cases. Mr. McWhirter went to see the sheriff, and the sheriff at that time made a number of affidavits charging different persons, and appellant, with gaming. Among them was that as stated in the opinion in said cause No. 4809. These complaints or affidavits were sworn to by the sheriff before the justice of the peace. Mr. McWhirter took them with him when he left the sheriff. It seems nothing was said between the parties at the time where the prosecutions were to be had, whether before said justice or the county court. Mr. McWhirter, when he returned to his office, put his file mark of said date on said complaints, but did nothing more whatever. The next morning the sheriff told the justice that all of said cases were to be prosecuted before the county court, and not said justice court, and thereupon the justice took said complaints and turned them over to the county clerk, who at once filed and numbered them and docketed the cases. That complaint taken at that time, when filed in the county court, was No. 4552 on the county court docket. The county attorney at once filed an information thereon. That complaint, after the justice of the peace turned it over to the county clerk, remained with the county clerk in the county court, and the justice of the peace never thereafter had any possession or control thereof. He never at any time docketed that complaint. The complaint in this case was made and sworn to by L. L. Porter before J. W. Bassett, assistant county attorney of Hunt county, on August 2, 1917. It was at once filed in the county court, and the county attorney filed an information based thereon, and the case was then on August 2d filed and docketed in said county court under the number on the docket of 4651. Mr. Bassett, the assistant county attorney, swore that he secured the information on which this latter complaint and information were filed from Ben Chambers, and that the said complaint of June 3, 1917, taken before Mr. McWhirter, appears to have been based upon the testimony of Jess Simmons.

When this said cause No. 4651 was called for trial in the county court, before the appellant made any announcement, he filed a- motion to dismiss this cause, setting up therein that it was the same offense as instituted by said complaint or affidavit of the sheriff before said justice of the peace. In his motion he stated that he attached said complaint or affidavit made before the said justice of the peace. As a matter of fact, however, it was not so attached. No evidence whatever was introduced by appellant at that time on his said plea. The court then overruled his motion to dismiss. Upon the trial before the jury he introduced some testimony which may have tended to show that the complaint before said justice and the complaint in this case covered the same offense; but at that time, and at m> time after this evidence was introduced, did appellant call for a ruling from the court, or ask a charge thereon before the jury. The judge, in qualifying the bill on this subject, did so with the explanation that the information. upon which defendant was tried in this case was filed originally in the county court, and the defendant was not being tried on the complaint filed in said justice court. So that as the matter is presented no reversible error is shown. The appellant in this case cites exactly the same authorities, and no other, which he cited in said other case against him cited above, and, as stated, the decision in said other case is in point and decisive of this.

The court overruled appellant’s motion for a continuance, claimed on account of the absence of a certain witness. In his motion he states that he attaches the subpoena for said witness to his motion.. None is attached. ■ The court, in approving his bill to the overruling of his motion for a continuance, in explanation thereof, states that no diligence was shown by appellant to secure the attendance of said witness. This bill was accepted as thus qualified, and is binding on the defendant. It shows no error.

The judgment is affirmed.
      <®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ROSALEZ v. STATE.
    (No. 5132.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Lakceny <§=>55, 64(8) — Possession—Evidence — Sufficiency.
    In prosecution for hog stealing, evidence held insufficient to sustain conviction.
    2. Lakceny <§=>1 — Elements — Receivinu Property.
    Mere receipt of property, knowing it to-have been stolen, does not constitute larceny.
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    J. Mateo Rosalez was convicted of hog stealing, and he appeals.
    Reversed and remanded.
    McCall, Crawford & McCall, of Conroe, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of hog stealing; his punishment being assessed at two years’ confinement in the penitentiary.

Roberts testified for the state, that he found a hog’s hide about a half mile from the camp where appellant and other Mexicans were staying. The hide showed a hog to have been recently skinned. He carried this hide to Mr. Brown, the alleged owner, and to Mr. Dumas. He states that he knew this was Mr. Brown’s hog. The hide had the ears on it when he found it and took it to Mr. Brown. Mr. Brown testified to ownership, and that he lost a hog; that it was a white sow. He saw the hide mentioned by the witness Roberts, and recognized it as being from his hog. He was not with them when they went to the Mexican’s house. The searching party found a skinned ham with a white foot on it; at least, that part of a hog’s hide. He says the ham and the foot were about the size and compared favorably with the hide, or what the size of the hog would have been. Dumas testified that he had a search warrant; that he went to the Mexican’s house and found a ham. He says there was no hair or hide on the ham. It had been skinned down to where the foot is cut off as a rule, and the skin left on the foot for something like six or seven inches in length. The ham was skinned. He compared the ham with the hide and it fit. This ham was found in the house where these Mexicans lived, among whom was the defendant, and was hanging in a corner of the room. He says there was another Mexican family and two single men living in the same house where defendant was living, all staying in the same room, and that they cooked and ate in that room. There was another Mexican, who seems to have been foreman of this bunch of Mexicans. His name was Sovalla. This Mexican had been to Mexico, and came in on Monday morning, but was not there when the hog was skinned.

Appellant testified that the meat found at the house at the time was brought there by another party who was living in the same house at the same time; that his wife cooked in one place in the room, and the other man’s wife cooked in another place, and the meat was found in the other man’s house where he cooked, “and Mr. Dumas asked where did they get this meat, and that man said she bought it, and the man, her husband, told him ‘No,’ that she hadn’t bought it; he brought it from where the train killed a shoat around there some place. I don’t know whereabout, and he brought a little piece at his house, and that was the meat that they found at that time, and he said he did not know nothing about it.” On cross-examination by the state defendant testified there was one room in that house, and they were all living together in the same house and in the same room. He thinks the other Mexican is still at New Caney, Montgomery county, but did not know. Dumas was recalled, and he- testified that when he went to the house none of the defendants were there; no men were there except this Soval-la, who had Just returned from Mexico, “and this man’s wife told me that it was hers— theirs; that her husband had bought it— Mateo had bought it. Then, when I arrested him and brought him up, I again asked whose meat it was; but he said she had ■bought it. They hadn’t got together on it; at first she said he had bought it; then afterwards he said she had bought it.” This is the case, in substance, at least, of the facts.

The criminating facts have been stated. We are of opinion this is not sufficient to justify an affirmance. The evidence as to appellant being in personal possession of the property is not sufficient. It is true the meat was in the same house and same room; but other Mexicans lived in there, and appellant’s statement is, which is not controverted, that the other Mexican brought it. While it is trae Dumas testified that he claimed it was purchased, and that he or his wife purchased it, still this is not shown to be false. If it be conceded that the hog was identified, still appellant’s account of his possession of it and how it came to his house has not been shown false. They nowhere undertake to show, except as above stated, that he had anything to do with the taking of the hog, and if he received it .from the other man, who brought it, even knowing it was stolen, it would not constitute theft. He must have been connected with the original taking. See (Solomon v. State, 203 S. W. 50; Ross v. State, 16 Tex. App. 559; Oliver v. State, 69 Tex. Cr. R. 263, 153 S. W. 309.

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