author: TANTIS, J.

text:
    STATE v. INTERNATIONAL & G. N. RY. CO.
    (No. 2670.)
    (Supreme Court of Texas.
    Nov. 10, 1915.)
    1. Statutes <@=>241 — Construction—Penal Act.
    An act of the Legislature penai in its nature should be strictly construed.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. «=>241.]
    2. Statutes <@=347 — Validity — Certainty and Deeniteness — Penal Act.
    An act, penal in its nature, levying penalties upon any person failing to erect a shed wherein railroad repair work may be conducted, must be plain enough for those Operating the industry, affected to know and realize whether by engaging in an act of repair without erecting the shed they would breach its terms, and, if such act is not sufficiently plain in meaning for those engaged in railroading to understand its terms and provisions, it must be held void for uncertainty.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. <@=>47.J
    3. Statutes <@=>47 — Validity — Certainty and Deeniteness — Penal Act.
    Where an act of the Legislature requiring persons engaged in the repair of railroad equipment to erect a shed therefor except in case of light repairs was as definite in meaning as the nature of the subject would allow, the rule that a penal act must be certain in its provisions was complied with.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. <@=>47.]
    4. Statutes <@=>47 — Certainty—Penal Act.
    Rev. St. 1911, arts. 3581, 6582, require the erection and maintenance of a building or shed by every person, corporation, or receiver engaged in constructing or repairing railroad cars or other railroad equipment, and provide a penalty of from $50 to $100 at suit of the state for each ten days of its violation, containing the exemption that the act shall not apply at “points where it is necessary to make light repairs only.” In the state’s suit to collect the penalties defendant contended that the act was too indefinite in its terms to be enforceable, as “light repairs” was a relative term and wholly unintelligible. Held, that the statute in question was sufficiently definite for those affected by it to understand its meaning so as to know under what circumstances they would be transcending it, since no plainer words than “light repair's,” conveying a clearer meaning, could have been used by the Legislature in limiting the intended exemption, so that it was not void for uncertainty, especially in view of the fact that the term, as used, w.as not a portion of the act penalizing the infraction of the provision, and not a portion creating a quasi penal offense, but was used in a provision exempting from suit or prosecution under the act persons affected by its provisions.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. <^=47.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by the State against the International & Great Northern Railway Company to recover penalties for violation of Rev. St. 1911, arts. 6581, 6582. Judgment for defendant was affirmed by the Court of Civil Appeals (165 S. W. 892), and the State brings error.
    Reversed, and cause remanded for new trial.

      B. P. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Wilson, Dabney & King, of Houston, for defendant in error.
   TANTIS, J.

Suit was by the state of Texas to recover penalties for the alleged violation of articles 6581 and 6582, Revised Statutes 1911, which required the erection and maintenance of a building or shed by every person, corporation, or receiver engaged in constructing or repairing railroad cars, trucks, or other railroad equipment, and provided a penalty of from $50 to $100 for each ten days of its violation. The act .has several exemptions, by the terms of which such person, corporation, or receiver would be absolved from its penalties. Among these exemptions is the provision that the act shall not apply at “points where it is necessary to make light repairs only.” A general demurrer was sustained to the state’s petition upon the ground that the act was too indefinite in its terms to be enforceable, the trial court holding that the term “ ‘light repair’ is a relative term, and wholly unintelligible.” The Court of Civil Appeals affirmed the judgment of the trial court, adopting its opinion, which was in writing, for its own opinion, and which can be found in 165 S. W. 892.

The act of the Legislature which is assailed is as follows:

“Art. 6581. Every person, corporation, or receiver, engaged in constructing or repairing railroad cars, trucks or other railroad equipment, shall erect and maintain a building or shed at every station or other point where as many as five men are regularly employed on such repair work, the building or shed to cover a sufficient portion of its track so as to provide that all men regularly employed in the construction and repair of cars, trucks, or other railroad equipment shall be sheltered from rain and protected from other inclement weather. The provisions of this article shall not apply at points where less than five men are regularly employed in the repair service, nor at division terminals, or other points where it is necessary to make light repairs only on cars, nor to cars loaded with time or perishable freight, nor to cars when trains are being held for the movement of said cars.
“Art. 6582. Any person, corporation, or receiver who shall violate the provisions of the foregoing article shall be liable to the state of Texas for a penalty in any sum not less than fifty dollars nor more than one hundred dollars, and each ten days of such failure or refusal to so comply shall be considered a separate infraction authorizing the recovery of a separate penalty; provided, however, that all persons, corporations, or receivers, affected by the preceding article, shall have until June 1, 1911, within which to comply with the provisions thereof.”

The holding of the trial court, and of the Court of Civil Appeals, that the statute in question was too indefinite in its terms to be enforceable, presents the only question for our determination. It will be observed that the act of the Legislature in question is penal in its nature, and for this reason it should be strictly construed. Construing it strictly, if its provisions are vague and uncertain of meaning to a degree that those engaged in the line of industry affected by the act as operatives and managers of such industry could not comprehend its meaning, then the act should be- held inoperative and void for uncertainty of meaning. The provisions of the act, in order for it to be enforceable, should be plain enough in meaning for those operating the industry affected by it to know and realize whether by engaging in an act of repair they would breach its terms. If the act meets and fulfills the requirements of this rule, it would be sufficiently definite i^i meaning to be operative. If it is not sufficiently plain in meaning for those engaged in the line of industry affected to so understand its terms and provisions, then the act would and should be held void for uncertainty, as it would be inexcusable for a government to fine or punish its citizens for an infraction of a law which in its terms could not be understood by them. But it is equally • true that, if the act of the Legislature is as definite in meaning as the nature of the subject would allow, no more than this should be expected to meet the rule of certainty required; to hold otherwise would be to nullify the power of the Legislature to legislate at all on a proper subject for its consideration.

It is worthy of notice to observe that the term “light repairs,” as used in said section, is not a portion of the act which penalizes the infraction of its provision, and not a portion of the act which creates the quasi penal offense, but the term is used in a provision exempting from suit or prosecution under the act the persons affected by its provisions. It is one of the defenses to a prosecution under the act which the act itself provides for the benefit of those engaged in the construction and repair of railroad equipment. As used in this connection, we think the meaning of that portion of the act of the Legislature which creates the offense is not rendered as uncertain as it would be if the term “light repairs” constituted an ingredient of the offense itself.

The subject of legislation was the protection of those engaged in repair work from exposure to inclement weather. This was a proper subject for legislation, and the Legislature was within its constitutional powers in considering the subject. It was their duty, however, in passing upon it, to write the law plain enough to advise persons affected by it when and under what circumstances their acts and conduct would breach its terms. At the same time no one should contend that it was the Legislature’s duty to accomplish in expression of clearness that which is impossible. While within their jurisdiction they were legislating upon a proper subject, could the Legislature have made this exemption any plainer in meaning than they did make it? The term “light repairs” is composed of two words of common and constant use by those engaged in every line of employment, and, when used together, should he reasonably plain in meaning to any person; and, when the term “light repairs” is considered by those engaged in a special line of industry and calling, such as the railroad business, it is possible that it might have a technical meaning in common use as applied to such industry, and in such event the expression “light repairs” would mean what it is commonly understood to mean among those engaged in such special line of industry. But, aside from the possibility of this technical meaning, the inquiry is pertinent as to whether the Legislature could have used' plainer words than “light repairs” and conveyed a clearer meaning than that term imports. What clearer expression could have been used? What could have been provided in the act to make the meaning plainer? It occurs to us that a more definite expression could not have been used to cover the subject intended. If a definition of the term “light repairs” had been attempted, it would have been impossible of construction, unless a cat-alogue of all repairs that might be considered “light” was embraced in the act. This would have been indeed a difficult, if not an impossible, task, when all the separate parts of the complicated machinery in use in the equipment and operation of railroads which might need repairs were considered, and the character of the repairs to each of said pieces of machinery, whether “light” or otherwise, were taken into account. The task of cata-loguing all repairs on all the machinery of a railroad company, and of properly classifying the repairs which would be “light repairs” would appear entirely unreasonable to demand of the Legislature. Such a rigid requirement would be too great a restriction upon the legislative functions, and, if followed, would shorten the arm of the Legislature to an extent that would amount to a serious hindrance to the exercise of their constitutional functions. We know of no rule of construction that would authorize us to nullify an act of the Legislature because of uncertainty in meaning, when from the nature of the subject legislated upon no more definite meaning could reasonably be expressed, the effect of which would be to prohibit legislation upon the subject. What constitutes “light repairs” in any stated line of industry should find little difficulty among those engaged in that particular line of employment. We think the statute in question is sufficiently definite for those affected by it to understand its meaning so as to know under what circumstances they would be transgressing its provisions. This is all that is or should be required.

Several expressions used in the act of the Thirty-First Legislature, commonly known as the “Water-Closet Law,” do not seem more certain than the term “light repairs”; yet this statute has been sustained against the identical attack that is made upon the statute involved in the instant case. In the water-closet statute (Acts 29th Leg. c. 133), which was penal in its nature, one of the requirements of the railroad companies was to keep water-closets or privies in a “reasonably clean and sanitary condition.” Another of its provisions was that said water-closets should be maintained “either within its passenger depots, or in connection therewith, or within a reasonable and convenient distance therefrom.” Another was “to keep said water-closets and depot grounds adjacent thereto well lighted at such hours in the nighttime as its passengers and patrons at such stations may have occasion to be at the same.”

At a glance it is seen, and requires no argument to establish, that each of said provisions in the water-closet law contains no greater degree of certainty than the repair statute. The water-closet statute was by this court held to be suitable to the subject-matter of the act, and not violative of the Constitution, or inoperative on account of uncertainty. In passing upon that case this court, speaking through Mr. Justice Phillips, clearly expressed the true rule, and the reason therefor, in the following language:

“Neither do we regard the act inoperative or violative of either the federal or state Constitution because of any vagueness or uncertainty in its terms. A requirement that the water-closets be kept in a reasonably clean and sanitary condition, that they be located within a reasonable * * * distance from the passenger depots, or be kept in connection therewith, and that they be kept well lighted, presents no difficulty to the understanding, and should present none in its observance. Its terms are suitable to the subject-matter of the act; and, having regard for the difference in conditions at the stations upon railway lines where it is made operative, the use of more specific language would very probably have provided only an arbitrary and impracticable rule.” State v. T & P. Ry. Co., 154 S. W. 1159.

We think the rule stated, and the reasons given therefor, in that case by this court, have direct application to the question involved in this case.

In 1907 the federal Congress passed an act regulating the hours of service for the employes of common carriers. Act March 4, 1907, c. 2939, § 2, 34 Stat 1416 (U. S. Comp. St 1913, § 8678). Among its provisions is this:

Telegraph operators, train dispatchers, etc., are not permitted to serve more than nine hours in the twenty-four hour period in offices operated continuously night and day, or thirteen hours in offices operated only during daytime, except in case of emergency, when the employés named in this proviso may be permitted to be and remain on duty for four additional hours in the twenty-four hour period, or not exceeding three days in any week.

The constitutionality of this act of Congress was assailed on the ground that the use of the term “except in case of emergency” rendered the act so uncertain and vague as to be incapable of enforcement as a penal statute. This contention was overruled by the United States Supreme Court in the case of Baltimore & Ohio Railway Company v. I. C. C, 221 U. S. 612, 31 Sup. Ct. 621, 56 L. Ed. 878. In passing upon the question that court said:

“It is said that the words ‘except in case of emergency’ make the application of the act so uncertain as to destroy its validity. But this argument, in substance, denies to the Legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define, without the use of generic terms, all the specific instances to be brought within it. In a legal sense there is no uncertainty. Congress, by an appropriate description of an exceptional class, has established a standard with respect to which cases that arise must be adjudged.”

The Texas Anti-Trust Act of 1899 (Acts 28th Leg. c. 1-16) denounces contracts and arrangements “reasonably calculated to fix and regulate the price of commodities,” etc. And the Texas Anti-Trust Act of 1903 (Acts 28th Leg. c. 94) prohibits acts which “tend to fix and regulate the price of commodities.” Each of said acts was penal in its nature. They were attacked on the ground that they were vague, indefinite, and uncertain. The Court of Civil Appeals overruled this contention in the case of Waters-Pieree Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918. This court denied a writ of error in said case. The same attack was made upon these acts in the same case before the United States Supreme Court, and their contention that the acts were vague and uncertain was overruled by that court. 212 U. S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417. These statutes contain a greater element of uncertainty than does the statute involved in the case under consideration. The Sherman Anti-Trust Act is not more specific than this statute, which requires the erection of sheds for repair work, and it has been many times sustained against attacks for uncertainty in meaning. That act provides that:

“Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
“Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall he deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.” Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1913, §§ 8820, 8821).

It contains no definition- or explanation of the meaning of a “contract or combination in the form of trust,” or of the expression “conspiracy in restraint of trade,” or of the expression “who shall monopolize,” or of the expression “combine or conspire with other persons,” but it has withstood many attacks for uncertainty of meaning. United States v. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; United States v. Trans-Missouri. Freight Ass’n, 166 U. S. 291, 17 Sup. Ct. 540, 41 L. Ed. 1007; United States v. Joint Traffic Association, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259; Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290; Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136; Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608; Northern Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. These instances serve to illustrate the futility of the contention that the act of the Legislature which requires shelter to be provided for the employes of railway companies when engaged in the construction or repair of their equipment is too vague and indefinite to be operative. We think the term “light repairs” makes plain the intent of the Legislature, and that the industries affected by the legislation will not suffer from a failure to understand its meaning, and that the courts and juries will find no difficulty in determining from the facts in each case whether the repairs were “light,” or otherwise.

We conclude that the holding of the Court of Civil Appeals, and of the trial court, should be reversed, and the cause remanded for another trial; and it is so ordered.
      «=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    ACOSTA et al. v. STATE.
    (No. 3762.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <§=^>1131 — Appeal—Dismissal.
    Where, since conviction and pending appeal, accused escaped from custody, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. <§^>1131.]
    2. Robbery @=>24r-PR0SECUTi0N — Evidence —Sufficiency.
    Where the indictment charged that defendants made an unlawful assault on the complaining witness and by violence put him in fear ot life and bodily injury and in that way robbed him, a conviction where the death penalty was not assessed is warranted on proof that they terrorized the witness with a razor and despoiled him, though a razor be not a deadly weapon.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. <§=^24.]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Jesus Acosta and Samual Rosas were convicted of robbery, and they appeal.
    Affirmed as to Jesus Acosta, and appeal of Samual Rosas dismissed.

      J. Marvin Jones, of Amarillo, for appellants. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellants were convicted under an indictment charging them with robbery, and their punishment assessed at five years’ confinement in the penitentiary.

Since said conviction, and while this case was pending in this court on appeal, it is made to appear by affidavits on file that appellant Samual Rosas has escaped from custody. The state’s motion to dismiss the appeal as to said appellant is therefore sustained, and this cause dismissed as to said appellant Samual Rosas.

There are no bills of exception in the record. The special charges requested by appellant were all given; consequently, if the evidence sustains the verdict, the judgment as to Jesus Acosta must be affirmed. Margarita Estrada testified that the two appellants agreed to show him the way to a barber shop; that they carried him into a room, drew a razor on him, and told him to hold up his hands, and when he did so they went through his pockets and took his money. This made a case, if the jury believed the testimony; and evidently they did believe it. Appellant contends that a razor is not per se a deadly weapon. We are inclined to believe that all mankind know that death can be inflicted by a razor in the hands of a grown man. At any rate, the death penalty was not assessed, but only five years adjudged. If the razor should be held not to be a deadly weapon, as the indictment alleged that appellants made an unlawful assault on Margarita Estrada and by violence did put the said Estrada in fear of life and bodily injury, the evidence supports the verdict.

The judgment is affirmed as to Jesus Acosta, and the appeal is dismissed as to Samual Rosas.
      <§=»ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    GRANT v. STATE.
    (No. 3756.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law @=>598 — Continuance — Surprise — Diligence.
    In a prosecution for unlawfully carrying a pistol, where the state showed that defendant had unlawfully carried a pistol once at a card game, and the other time at another place, and defendant,' after announcement for trial, applied for a continuance on the ground that he did not know that the state would show that he carried the pistol at the card game, and that he could prove that he did not have the pistol there, in view of the pendency of the case for six months, his having the pistol at another place, and the fact that he produced no testimony with reference to the card game, the continuance was properly denied.
    [Ed. _ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. @= 598.]
    2. Criminal Law @=>1159 — Appeal — Question of Fact — Conflicting Evidence.
    Where a direct conflict in the testimony has been decided adversely to the accused, the Court of Criminal Appeals is not ordinarily authorized to reverse the judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 8074 — 3083; Dec. Dig. @=> 1159.]
    Appeal from Van Zandt County Court; R. M. Lively, Judge.
    Charlie Grant was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    L. Davidson, of Canton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of unlawfully carrying a pistol; his punishment being assessed at a fine of $100.

The facts are in conflict. The state made out a ease showing that appellant on two different occasions had a pistol under circumstances which would not justify him in carrying it — once at a card game; and the other time at a different place subsequent to the time of having it at the card game.

After announcement for trial appellant filed what we suppose was intended to operate as an application for a continuance. In this he says he was not aware of the fact that the state would produce evidence that he had the pistol at the time of the card playing, and that he could prove by certain named witnesses whom he alleges were present at the time and place of the card game who would testify he did not at that place have a pistol. The' court qualifies this bill by stating that the case had been pending for six months, and that appellant had not employed counsel until the day of the trial, and no effort had been made to obtain any evidence, and no process issued for witnesses. This would show a want of diligence in the preparation of his case for trial. He might have ascertained very readily that the state’s witnesses would testify he had a pistol at the card game, but if, as a matter of fact, he did not have the pistol at the card game, he should have investigated the matter to ascertain what the state’s case would be, or upon what testimony the state would rely. But if his witnesses would so swear, the other incident remains that he had the pistol at the house of Fred Henderson, where the state’s witness Sandy Oarmiehal resided. He was the main state witness, especially as to the card game. There is other testimony supporting Carmichal as to the incident at Henderson’s residence. If the witnesses would testify as he indicated in his application with reference to the card game, the other incident still remained. He denies having the pistol on both occasions, but his application for postponement on account of surprise does not include the incident at the Henderson house. There is another weakness in this record with reference to this particular matter, to wit: That none of these witnesses were produced on the motion for new trial, or, rather, no testimony from any of them with reference to the card game was offered as to -whether they were there or whether the pistol was exhibited at that particular time and place. So from any viewpoint we do not think there is any particular merit in this application, and no error in the action of the court refusing the motion for new trial.

The other bill of exceptions was reserved to the insufficiency of the testimony. Where there is a direct conflict in the testimony, and this has been decided adversely to the accused, this court would not be authorized ordinarily to reverse the judgment. Appellant testified on’e way, and the state’s witness the other, making a direct conflict, in regard to the fact of having the pistol at both places. There was no election asked as to which transaction the state would rely upon, and the case went before the court with testimony in regard to both transactions and without objection.

So from any viewpoint we think this judgment should be affirmed; and it is accordingly so ordered.
      cgsoEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOUTHALL v. STATE.
    (No. 3672.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Criminal Law <@=>422' — Evidence—Declarations oe Third Parties.
    Where defendant and three other boys were together when one of them made an assault, and were also together some time prior to the assault, and in such a position as to lead the jury to believe that defendant could have and did hear a remark made by one of the crowd that they would get the prosecuting witness on his way home, such remark was admissible on the question of whether defendant was a principal in the commission of the assault.
    [Ed. _Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ '984-988; Dee. Dig. <@=> 422.]
    2'. Criminal Law <@=5418 — Evidence—Declarations in Defendant’s Presence.
    On a trial for assaulting a party while he was on his way home in G.’s buggy, evidence that before starting for home G. approached him and said, “Come on and let’s go home,” and that the assaulted party responded, “All right,” was admissible over the objection that defendant was not present, where it appeared that he was near enough that the assaulted party heard a remark made by him or one of his companions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 96S-972; Dec. Dig. <@=> 418.]
    3.Criminal Law <@=>423 — Evidence—Declarations of Third Parties.
    Where, on a trial for assault involving a dispute as to whether defendant was a principal in the commission of the assault by W., the evidence placed defendant where he could and probably did hear arrangements for the assaulted party to ride home with G., and showed that he was with W. when W. and his companions placed their buggies so that G. could not pass, and that, when the prosecuting witness struck W. with a plank and knocked him down, defendant jerked the plank from the prosecuting witness, evidence that, when G. drove up to the point where the road was blocked by the buggies, W. told him to tell the prosecuting witness to get out and that he was going to whip him, was admissible on the issue of whether there was a premeditated assault, whether there was a conspiracy between defendant, W., and their companions to bring about the assault, and whether, with a knowledge of these facts, defendant so conducted himself as to become a principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dee. Dig. <@=> 423.]
    4. Criminal Law <@=>423— Evidence — Acts and Declarations of Conspirators.
    Evidence as to what W. did to the prosecuting witness after he ran away, pursued by W., was admissible over the objection that defendant was not present, if he was a principal in the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dee. Dig. <@=> 423.]
    5. Criminal Law <@=^427 — Parties — Evidence.
    Where the evidence showed that after the assaulted party ran, pursued by W., defendant and W.’s other companions followed after them, and when they came up with W. and the assaulted party remarked that W. ought to beat such party’s head off, this was a strong circumstance tending to show that defendant was present and lending encouragement to W. in the commission of the assault and guilty of such conduct as would make him principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <@=> 427.]
    6. Criminal Law <@==>419, 420 — Evidence — Hearsay.
    Where an assaulted party testified that W. beat him with a fence rail, and that he knew it was a fence rail because one was found on the ground the next morning with blood on it, but on cross-examination it appeared that he did not go back to the scene of difficulty or see the rail, but that G. went back and found the rail and saw the blood, the assaulted party should not have been permitted to testify as to what he learned from G.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@=>419, 420.]
    7. Criminal Law <@=>1169 — Harmless Error' —Admission of Evidence.
    The admission of his testimony concerning the fence rail was not reversible error, where G. testified to the same facts, and there was no evidence to the contrary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=>1169.]
    8. Assault and Battery <@=>92 — Evidence-Weight and Sufficiency.
    On a trial for assault, evidence as to whether defendant was a principal in the offense or an innocent bystander held, to support a verdict of guilty.
    LEd. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. <@=> 92.]
    9. Assault and Battery <@=>92 — Evidence— Weight and Sufficiency.
    On a trial for aggravated assault, evidence held sufficient to show a premeditated plan to waylay an assaulted party, and that he was waylaid and a fight forced at a point selected by defendant and his companions.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. <@=> 92.]
    Appeal from Johnson County Court; G. Jay Jackson, Judge.

      Uniee Southall was convicted of aggravated assault, and he appeals.
    Affirmed.
    Johnson & Harrell, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction for aggravated assault. Under this record there could he no question that Otis Woods did make an aggravated assault upon M. M. Wilshire; the only contested issue in the case being whether or not appellant’s conduct on that occasion was such as to make him a principal in the commission of the offense.

The undisputed testimony in the case would show a number of young gentlemen had attended a moving picture show at Burleson. After the show Wilshire asked Wood Haynes if he knew when Miller was coming back. Otis Woods responded, “I don’t know anything about him.” Wilshire said, “I was not speaking to you,” when Wood cursed him, and invited him to go behind the stores, when he would whip him. It is made to appear, by defendant’s testimony, that at this time appellant advised Woods to desist, and Woods said he would if Wilshire did not want to fight. Wilshire retired into a restaurant, and Woods, appellant, Wyatt Hunt, and Travis Brown got together on the gallery of the restaurant. Several witnesses testify, while these four boys were together, some one said, referring to Wilshire, “We will get him, or I will get him on his road home.” Appellant accepted the bills as filed by the court, and in the qualification the court says the evidence shows “that at the time such remarks were made appellant, Otis Woods, Wyatt Hunt, and Travis Brown were together in front of the restaurant, and that the remark came from the crowd so bunched up.” As qualified by the court, these bills present no error. All four were together when the assault was made by Woods, and, the testimony showing that, if appellant did not make the remark himself, he was standing in such proximity as to lead a jury to believe that he could have and did hear it, it would be material testimony on the issue of whether or not appellant was a principal in the commission of the offense.

There are also several bills in the record objecting to the admissibility of a statement made by Gulley to Wilshire while he was in the restaurant and appellant and the other young men were on the gallery. It is made to appear by the testimony that Wilshire, instead of going to his own home to avoid a difficulty, went with Gulley in Gulley’s buggy. After Wilshire had stayed in the restaurant for some time, Gulley approached him and said, “Come on and let’s go home,” to which Wilshire responded, “All right.” Appellant objected to this on the ground that he was not present when the language was used. The record discloses that appellant and the other young men were on the gallery of the restaurant at the time; that Wilshire could and did hear what was said by them when the remark was made, “We or I will get him on his way home,” and consequently appellant and those with him were in such a position that they could, and probably did, hear what was said. The record further discloses that, when Wilshire and Gulley got in the buggy and started and had gone about two miles, appellant, Woods, Hunt, and Brown were in buggies in the forks of the road, their buggies being so placed that it was impossible for Gulley to drive on; that Woods asked him if Wilshire was in the buggy, and, upon being answered in the affirmative, said, “Tell Wilshire to get out; I am going to whip him.” Appellant being placed by the evidence in a position where he could and probably did hear the arrangements made between Gulley and Wil-shire for Wilshire to accompany Gulley home, and appellant also being in company with Woods on Gulley’s road home at the time the buggies were so placed that Gulley could not pass, and Woods said to Gulley, “Tell Wilshire to get out; I am going to whip him,” the testimony was admissible on the issue of whether or not there was a premeditated assault, and, if there was a conspiracy between appellant, Woods, and the other two young gentlemen to so place themselves in the road as to bring it about, and whether or not appellant, with a knowledge of these facts, so conducted himself at the time of the assault as to render himself a principal in the offense committed by Woods. The state’s evidence would show, when Wilshire struck Woods with a plank and knocked him down, appellant jerked the plank from Wilshire and handed it to Woods. Appellant admits getting the plank from Wilshire, hut says he did not hand it to Woods; that Woods jerked it out of his hand. The testimony objected to was properly admitted. Holden v. State, 18 Tex. App. 106; La Grone v. State, 61 Tex. Cr. R. 170, 135 S. W. 122.

When the fight took place in the road, and appellant took the plank away from Wilshire, and he either handed it to Woods, or Woods wrenched it out of his hands and struck Wilshire, Wilshire ran, Woods pursuing him. Appellant objected to Wilshire testifying what Woods did to him after he ran, on the ground that appellant was not present. If appellant, was a principal in the commission of the offense, the evidence would be admissible, and, as the evidence shows that appellant, Brown, and Hunt followed on after them, and the state’s testimony would show that when they caught him with Woods and Wilshire they remarked “that he [Woods] ought to beat your [Wilshire’s] damned head off,” it would be a strong circumstance tending to show that appellant was present and lending encouragement to Woods in the commission of the assault, and guilty of such conduct as would make him a principal in the commission of the offense.

Wilshire testified that after he fled he got tangled in some brush, when Woods overtook him and beat him with a fence rail; that he knew it was a fence rail because one was found on the ground the next morning with blood on it. On cross-examination it appeared that Wilshire did not go back to the scene of the difficulty, and did not see the rail, but Gulley did go back and find the rail and saw the blood. Wilshire should not have been permitted to testify as to what he had learned from Gulley. It was hearsay, but, inasmuch ás Gulley testified to the same state of facts, and there is no testimony denying this state of facts, this does not present reversible error. If appellant had raised an issue by any testimony that it was not a fence rail, or that one was not found on the ground with blood on it, we might take a different view of the matter.

Appellant’s testimony would raise the issue that he was not a principal, and was an innocent bystander, who merely happened to be present when all these matters occurred; that he in no way aided or encouraged Woods, and did no acts and was guilty of no conduct that would make him a principal. This issue was fairly and fully presented in the two special charges given at appellant’s request, and the jury found against such contention, and we would not be authorized to disturb their finding, as the evidence offered by the state will support the verdict of the jury on this and all other issues in the case.

Appellant contends there is no evidence tending to raise the issue of a premeditated assault. We think the state’s evidence would amply show a preconceived premeditated plan to waylay Gulley and Wilshire; that they were waylaid and a fight forced by Woods at a point in the road selected by Woods, appellant, Hunt, and Brown, when all four were present.

The judgment is affirmed.

       @s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    POPE v. STATE.
    (No. 3698.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    Affidavits <S=»5 — Authoeity to Take — Attorneys.
    On motion for new trial in a criminal case on the ground of newly discovered evidence, affidavits, made before the attorney of defendant, are invalid and cannot be considered.
    [Ed. Note. — Eor other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. <S==>5.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    G. C. Pope was convicted of passing a forged instrument, and he appeals'.
    Affirmed.
    Will M. Martin and Geo. W. Dupree,- both of Hillsboro, for appellant. C. C. McDonald, Asst. A tty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for passing a forged instrument, and assessed the lowest punishment. The indictment is in two counts; one for forging a check, the other for passing the alleged forged check. The court submitted both issues for a finding. The jury expressly found him guilty of passing the forged instrument, thereby acquitting him of the forgery thereof. There were some questions raised by the appellant pertaining to the charge on the first count, but as he was acquitted on that count, those questions, even if they had been on that issue material, pass out of the case, and it is wholly unnecessary to consider them. The state clearly proved that the alleged forged instrument was a forgery, and the state’s witness positively identified appellant and swore that he had passed that identical instrument on him and that he paid him therefor in goods and money. The testimony as to the second count was positive, and his guilt thereunder did not depend wholly on circumstantial evidence and no charge on circumstantial evidence on that count should have been given.

Appellant requested several special charges which the court correctly refused to give. None of them should have been given even if they had been presented in such a way that this court would have to consider any of them.

The evidence shows that about a month after the alleged forged instrument was passed A. W. White, whose name had been forged thereto, and appellant, went to see Mr. Downing, the party on whom it was passed and talked with him about the facts. Downing swore positively that the instrument was passed on him one Saturday evening between 4 and 6 o’clock, and that it was not at night, and he as positively and unequivocally swore that he did not tell White and appellant on said occasion that it was passed on him at night. They swore he did so tell them. ■Downing was the state’s main witness. Appellant did not express, at the time, any surprise at Downing’s testimony, but he swore positively that he was not the man who passed on Downing said forged instrument at all, and that he had never been in Downing’s store until about a month after the alleged offense. He did not testify where he was during the hours' between 4 and 6 o’clock on the evening Downing swore he passed said forged instrument on him. Of course he knew where he was. After the trial, he made a motion setting up that he was at a different place between said hours, and attached the purported affidavits of several of his kinfolks to' the same effect. Each of these affidavits were sworn to before one of his attorneys, who represented him at the time, and did in this court. The state objects to the consideration of each of these affidavits on that account. This court, in Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, expressly held that affidavits made before the attorneys of either side were invalid and could not be considered. This decision has been followed and adhered to uniformly in a large number of cases since then. As presented, the court did not err in refusing a new trial on the claimed ground of newly discovered evidence. Appellant himself made no affidavit at all on the subject.

No error is pointed out that would authorize this court to reverse this case. It is therefore affirmed.
      <g=»For other eases see same topic and’KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■HARPER, J.

text:
    GALVAN v. STATE.
    (No. 3732.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <§=>1166 — Appeal—Denial op Continuance.
    The denial of a continuance asked for absence of witnesses whose attendance was secured presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. <¿=31166.]
    2. Criminal Law <§=>596— Continuance — Grounds — Absence op Impeaching Witness.
    A continuance sought to secure the attendance of a witness whose testimony can only be available to impeach a state’s witness should be denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. <§=> 506.]
    3. Witnesses <§=>78 — Competency.
    Evidence held to show that a witness was not defendant’s wife and therefore competent to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig: <§=>78.]
    4. Indictment and Information <§=>34^Al-teration — Indorsement op Names op Witnesses.
    The indorsement of names of witnesses upon the back of an indictment after its return into court was not an alteration invalidating it.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 138-143; Dec. Dig. <@=>34.]
    5. Indictment and Information <§=>138 — Exception to Indictment fob Alteration.
    Where, the motion excepting to the indictment on the ground that it had been altered after return was not sworn to, had no affidavit of any person attached thereto, and made no specific allegation that any changes were made after the indictment was returned into court, the indictment reading regularly in every respect, the claimed alterations being an erasure and blotch in the words “to die” and irregularities in the figures “1914,” overruling of the motion was proper.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. <§=>138.]
    6. Criminal Law <§=>1056 — Reservation of Grounds of Review — Refusal of Special Charges.
    Where no exceptions were reserved to the court’s charge when submitted to defendant’s counsel for inspection, the refusal of special charges requested by defendant was proper.
    [Ed. Note. — For other cases, see Criminal I.aw, Cent. Dig. §§ 2668, 2670; Dec. Dig. <§=> 1056.]
    7. Homicide <§=>236 — Murder — Sufficiency op Evidence.
    In a prosecution for murder, evidence held1 to show that decedent, a three year old girl, received fatal injury when flung into an adjoining, room by defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. <§=>236.]
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Eustacio Galvan was convicted of murder, and he appeals.
    Judgment reformed and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   ■HARPER, J.

Appellant was indicted, charged with murder, and, when tried, was convicted, and his punishment assessed at imprisonment in the penitentiary for life.

There are three applications for a continuance or postponement of the case when called for trial. One was on account of the absence of Geo. Shaw, his mother, Mrs. Shaw, and Pedro Herrera. Another was to secure the attendance of Dr. Will Gibson. The attendance of all these witnesses was secured; consequently these two applications present no error. The third application was to secure the attendance of Calna Morales and Sam Alberts, who are alleged to reside in Bexar county, Tex. The return of the sheriff of Bexar county shows that they could not be found in that county. As the testimony, it is stated, expected to be elicited from them, would only go to impeach the state’s witness Pabla Gaitan — that she made statements out of court different to what her testimony would he and was on the trial — it is not of that material character that we can say the court abused his discretion in overruling the application. The rule is that, where the testimony sought could only he available to impeach a state’s witness, who is to testify in the case, the continuance should be refused. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1917, 39 S. W. 108; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184. When the witness Pabla Gaitan was on the witness stand, she was not questioned in regard to this matter. If she had been, she might have admitted making the statements alleged to have been made by ber to Calna Morales and Sam Alberts, and if sbe bad admitted making the statements, if the witnesses had been present, their testimony would not have been admissible.

It is claimed the court erred in permitting the witness Pabla Gaitan to testify, as she was the wife of appellant. If she had been his wife, it would have been improper to permit her to testify. She testified:

“I was never married to Eustacio Galvan; we were just living together. 1 was married and am now married to another man, but he is not living with me. I have never been divorced from him.”

Appellant himself testified:

“I am not married to Pabla Gaitan. I am married to another and different woman, and have never been divorced from that woman.”

The court did not err in permitting the witness to testify.

Appellant excepted to the indictment on the ground that changes had been made therein; that the names of witnesses had been placed on the bach of the indictment since it had been returned into court. This ■would not be an alteration of .the indictment. The motion also states that on the face thereof there appears an erasure and blotch in the words “to die” and irregularities in the figures “1914.” The original indictment is not sent to us for inspection, and the indictment copied in the record is regular in every respect. There is no affidavit of any person attached to the motion. It is not sworn to, and no specific allegation that any such changes had been made since it was returned into court. Under such circumstances, the court did not err in overruling the ■motion.

There were no exceptions reserved to the charge of the court when submitted to counsel for inspection, and no complaint is made to it even in the motion for a new trial. In the motion for new trial there is complaint that the court erred in refusing to give the special charges requested by appellant, citing them by number. As the court’s charge was not in any manner excepted to, no error is presented by the special charges requested.

The only other complaint is that the evidence is insufficient. The state’s testimony is that appellant came home angry; that the little three year old girl was crying on a pallet, and he picked her up and placed her on the door of the stove or range, which had fallen to the floor; that the door was hot, and the little girl began to cry, and began urinating; that he picked the child up and threw her some eight or ten feet into the next room; the child was picked up in a dying condition. Dr. McDuff, a few days after the little girl was buried, had the body exhumed, and he testifies:

“Its head was cracked. I clipped the skin on its head, and pulled its skull apart, and made a careful examination of the same. This child has had a blow, or violence has been used on its head to cause its death; that is, the head had come in contact with some hard substance, from which contact the skull was cracked, causing blood to settle around the brain, and to dot, which produced death. The leg which I speak of had been broken for some time prior to its death.”

No other cause is suggested for the death of the.child than that it received the fatal injury when thrown into the next room by appellant. She died almost instantly after being thrown into the room by appellant. There is nothing suggested in the record whereby the child could have received the injury in any other way.

The judge, in passing sentence, ignored the indeterminate sentence law, and sentenced appellant to a fiked term of imprisonment. The judgment will be reformed so that the sentence will read that he be imprisoned in the penitentiary for a term not less than five years nor longer than his natural life, and the clerk of this court will enter proper judgment.

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


text:
    RICE v. STATE.
    (No. 3734.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <@=>406 — Evidence—Statements of Accused.
    Where a police officer was merely making an investigation as to defendant’s possession of a sack containing medicines, and made no arrest until after the investigation, defendant’s statements, after the officer had asked him to go with him, to the effect that he was taking the medicine to a certain place for delivery, the testimony of the one to whom defendant said he was to deliver it that he had never ordered it, and defendant’s reply that such person knew he had ordered it, were not inadmissible on the ground that defendant was under arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. <@=>406.]
    2. Larceny <@=>40 — Complaint—Matters to be Proved.
    Under a complaint alleging that defendant fraudulently took 500 asperine tablets, it was incumbent on' the state to prove that the tablets taken were asperine, as this was descriptive; but it was not necessary to prove their exact number, as that was in no way descriptive, but related solely to the quantity taken.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102, 126, 160; Dec. Dig. <@=>40.]
    3. Criminal Law <@=>730 — Evidence—Character — Argument of Counsel.
    The county attorney’s statement that he did not know whether it was the first time defendant had been charged with an offense presented no error, where the court sustained the objection that, as defendant had ‘not put his character in issue, the state could not attack it, and instructed the jury not to consider it, and gave the defendant’s special charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=>730.]
    4. Criminal Law <@=>829 — Instructions—Requests Covered.
    In a prosecution for larceny, where the court instructed, as to defendant’s explanation of his possession, that if he was in possession of the property described in the information for delivery to some other person for his alleged employer he was not guilty, it was unnecessary to give special charges asked on that issue.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829.]
    Appeal from Criminal District Court, 'Dallas County; W. L. Crawford, Jr., Judge.
    Jim Rice was convicted of theft, and he appeals.
    Affirmed.

      O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at a fine of ?5 and 30 days’ imprisonment in the county jail.

R. A. Aldrich testified: That he was an officer of the city of Dallas, and on the 2d of February he saw appellant, between San Jacinto and Bryan streets with a sack on his shoulder. That he examined the sack and found it contained medicines, one article being a bottle of asperine tablets, with the label on it: “500 Compound Tablets, Asper-ine, five grains, Manufactured and guaranteed by the First Texas Chemical Company, Dallas, Texas.” That he asked appellant where he was going with this medicine, and that appellant replied he was working for the chemical company, and was taking the medicine to Williams’ drug store for delivery. He asked appellant for the order shegt, and appellant made a pretense as if searching for it. When appellant did not find the order sheet, Officer Aldrich told appellant he would go with him to the Williams Drug Company and see if he had ordered the. medicine. That when they got to the Williams Drug Company he asked Dr. Williams if he had ordered the medicine, and Dr. Williams replied, “No, I never ordered anything from the First Texas Chemical Company in my life”; that he purchased from the Griener-Kelly Drug Company. Appellant replied to him, “You know you ordered this stuff,” when Dr. Williams replied, “I did not order that medicine.” The officer says he then arrested appellant, and took the sack of medicine. A bill of exceptions was reserved to the admissibility of all this testimony, he contending that he was under arrest. The officer says he did not arrest appellant until after the conversation with Dr. Williams, and would not have done so had not the doctor stated he had ordered no such medicines. Appellant does not testify, and there is no testimony that he considered himself under arrest until after this conversation. So far as this record discloses, he went with the officer to the Williams Drug Company store willingly, and there insisted that the Williams Drug Company had ordered the medicine found in his possession. In the ease of

Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 592, Judge Davidson, speaking for the court, held:

“It is true the officer said he did not intend to let him get away until he had satisfied himself about the matter,' and that after he satisfied himself about the matter he did arrest appellant. Appellant was not conscious of the fact', so far as the record is concerned, that he was to be arrested, and it is not shown, as we understand this testimony, that he was under any duress, or that he believed he was under duress, when he made the statement. We are of the opinion therefore these bills do not justify this court in reversing the judgment.”

This is peculiarly applicable to the facts in this case. It is merely shown the officer was making an investigation, and after the investigation he determined to and did arrest appellant, but no arrest had been made nor determined upon until after the investigation. Girtman v. State, 73 Tex. Cr. R. 158, 164 S. W. 1010; Hiles v. State, 73 Tex. Cr. R. 23, 163 S. W. 717; and cases cited in these two opinions.

Appellant seems to have made his defense on the theory that, as the complaint alleged that he did fraudulently take 500 as-perine tablets of the value of $2.50, it was incumbent on the state to prove that the bottle contained 500 tablets, and no less. Objections to testimony along this line were made, and special charges requested asking the court to instruct the jury that, if the state had not shown by the evidence beyond a reasonable doubt that appellant took 500 asperine tablets, they would acquit. This is not the law. Of course, it was incumbent on the state to prove that the tablets taken were asperine tablets, as this was descriptive of the property taken; but it was not necessary to prove the exact number of tablets— this is in no way descriptive of the property, but relates solely to the quantity taken. And under such an allegation, if the state proved appellant took 100, 200, or any other number of asperine tablets, and they had a value, a conviction would be authorized. Jones v. State, 44 S. W. 162.

In another bill it is complained that in the argument the county attorney stated that they did not' know whether or not this was the first time appellant had been charged with an offense; that the defendant had not put his character in issue, and the state could not attack it. On objection, the court at once sustained the objection, and instructed the jury not to consider the remarks, giving the special charge requested by appellant. This presents no error. Mercer v. State, 17 Tex. App. 467.

The court instructed the jury in regard to the explanation of defendant of his possession of the property in the following language:

“You are further instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant was found in possession of certain asperine tablets, if any, described in the information in this cause by Officer Aldrich, but you further find, or have a reasonable doubt thereof, that.at the time the defendant was so found in ’ possession of said tablets, if any, that defendant had said tablets in his possession for the purpose of delivering same to the Williams Drug Company or any other person, firm or corporation for J. S. Keene of the First Texas Chemical Company, then, if you so find, you will acquit the defendant and say by your verdict not guilty.”

It was therefore unnecessary to give the special charges requested on this issue.

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


text:
    HYROOP v. STATE.
    (No. 3642.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Indictment and Information <g=>137 — Joinder of Counts — Sufficiency.
    Where an indictment was in two counts, and one of them was good, there was no available error in overruling a motion to quash, where the conviction under the indictment was general.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-437; Dec. Dig. <®=>137.]
    2. Physicians and Surgeons <§=>2 — Medical Practice Act — Constitutionality.
    The medical practice act is not unconstitutional.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dec. Dig.
    3. Criminal Law <S=»780 — Accomplices — Who Are.
    The fact that officers wont to one charged with practicing medicine unlawfully, and, though perfectly well, procured him to treat them for a supposed trouble in order to catch him, does not make them liis accomplices so as to require a charge on accomplices.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. 780.1
    4. Physicians and Surgeons <@=56 — Unlicensed Practice — Masseurs — Evidence — Admissibility.
    In a prosecution for unlawfully practicing medicine, where the defense is that defendant was a masseur, and not a physician, evidence for the state that he treated disease by other moans than those usually ascribed to a masseur is admissible.
    [Ed. Note. — For other cases, see Physicians, and Surgeons, Cent. Dig. §§ 6 — 11; Dec. Dig. <S=»6.]
    5. Physicians and Surgeons <S=^6 — License to Practice — “Practicing Medicine”— “Physician.”
    Under Rev. St. 1911, art. 5745, providing that any person is “practicing” medicine when he publicly professes to be a physician or surgeon or offers to treat any disease, deformity, or injury by any system or method, or to effect cures thereof, and charges money or other comr pensation therefor, one professing to be a masseur is a “physician,” where he professes to cure diseases or disorders.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. <§=j0.
    For other definitions; see Words and Phrases, First and Second Series, Practice of Medicine.]
    6. Criminal Law <@=^>406 — Best Evidence— Admissibility.
    On defendant’s admission that a circular was oue used by him in advertising his business as a masseur, the court properly admitted the circular in evidence to show the purpose for which he held himself out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, S9A-917, 920-927; Dec. Dig. <S=406.]
    7. Criminal Law <@^400 — Secondary Evidence.
    Parol evidence of the contents of a circular was properly rejected, where the circular itself could be put in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 87&-8S&, 1208-1210; Dec. Dig. <@=»40O.]
    '8. Physicians and Surgeons <®=>6 — 'Unlawful Practice.
    Under Rev. St. 1911, art. 5745, providing that any person is practicing medicine when he publicly professes to be a physician or surgeon or treats or offers to treat any disease, deformity, or injury by any system or method, or to effect cures thereof, and charges money or other compensation therefor, it is not necessary to complete the offense that the defendant shall have held himself out as practicing medicine.
    LEd. Note. — ÍTor other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. ®=^>6.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    C. E. Hyroop was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    Roy & Rowland, Mike E. Smith, and G. W. Dunaway, all of Ft. Worth, for appellant. C. C. 'McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was adjudged guilty of unlawfully practicing medicine. As the second count in the information, at least, is not subject to the objection leveled at it, and the conviction being general, and can be applied to either count, the court did not err in overruling the motion to quash it. This count in the information is drawn in terms frequently approved by this court. Collins v. State, 152 S. W. 1047, and cases there cited.

Neither is the medical practice act unconstitutional, as has been heretofore held by this court and the United States Supreme Court. Collins v. Texas, 223 U. S. 288, 32 Sup. Ct. 286, 56 L. Ed. 439.

R. E. Tyler testified that he went to the office of appellant, and complained that he had appendicitis, and told appellant that he had had a violent attack some five weeks before his visit. Appellant told him he did not look like a man that had appendicitis, but that he was suffering from inflammation of the colon, and proceeded to treat Tyler for that affliction, saying he could cure him in a little while. Appellant first gave Tyler an enema, saying it was necessary to wash out his stomach. He then had Tyler to lie down, and rolled two pillows, placing one under his hips, and the other under his chest, there being nothing under the center of the body. He then mashed him up and down, pushing him clear to the table. After giving this treatment for awhile, he placed Tyler on another table, and gave him an electric treatment with an electrode, later so using the electrode as to produce what is called the violet ray. Without going into further details of the treatment, he told Tyler when leaving that he must eat nothing but soup and milk, and leave off all heavy diets, especially meat.

As a matter of fact, Tyler was not sick with any disease or disorder when he went to see appellant, hut went there at the instance of others to see whether or not appellant. was practicing medicine, within the, provisions of the medical practice act, and making a charge therefor. Tyler paid appellant $3 for the treatment.

G. W. Day testified he went with Tyler, and testifies to, in substance, the same state of facts as did Tyler.

Appellant contends this made them accomplices, and the court should have so instructed the jury. These men, knowing or believing that appellant was practicing medicine in violation of law, went there to detect him, and under no rule of law we know of, would their acts constitute them accomplices.

Appellant objected to the testimony of Joseph Winterman who testified: That appellant treated him for an affection of the hand and arm. That his hand just hurt, elbow ached, and muscles of the arm hurt. Appellant treated him for some time, and charged him $25. He gave Winterman an electric treatment with a battery, and also gave him what is termed a “hot-air” treatment, putting the hand in a “sweat box.” That appellant told him he could cure him, hut he did not do so, although he underwent treatment for some two or three months. Appellant’s contention was that he was a “masseur,” and therefore did not have to obtain and register a certificate. As this was his contention, it was permissible for the state to show that he was treating disease by other means and methods than that usually ascribed to a masseur, and the court did not err in admitting this testimony, nor in admitting that he had an account at a drug store for medicines, and in one instance had prescribed and furnished a salve for a sore on the leg of a patient.

The testimony of Tyler and Day was clearly admissible, and the objections urged to certain portions thereof are untenable.

The testimony of the witnesses Brown, Castello, and Day, excluded by the court, presents no error. Appellant does not state that he expected to or could have proven by the witnesses that the treatment given by him to Tyler, and which he admitted giving, was the treatment of a “masseur” in his particular sphere of labor. It is true be offered to prove by these witnesses that a “masseur” treatment was good for certain character of ailments, but the fact that he advertised and held himself out as a masseur would not prevent the state from showing, if it could, that he treated his patients by other means than those customarily used by a masseur in his particular sphere of labor. The giving of enema treatment by electric machinery, and by the use of a hot-air apparatus, does not come within the means and modes usually ascribed to the sphere of a masseur in the treatment of a disease, and as used by them aforetimes, and could not come within the exemption as defined by the Legislature in exempting a masseur in his sphere of labor.

Appellant seems to think the treatment must have been by administering medicines before he would be included within the prohibition of the law. Article 5745 of the Rev. Statutes reads:

“Any person shall be regarded as practicing medicine within the meaning of this law :
“1. Who shall publicly profess to be a physician or surgeon and shall treat, or offer to treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof;
“2. Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method, or to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.”
McEachin’s Rev. Stats.

This article was construed in Ex parte Collins, 57 Tex. Cr. R. 2, 121 S. W. 501, and the construction therein is the correct one and has always been adhered to.

If appellant could have proven that the particular sphere of a masseur was “manipulating, stroking, kneading, tapping, or heating the body by hands or mechanical means,” this would not have embraced the treatment shown to have been given Tyler on his visit to his office, and would be immaterial in this case.

As appellant admitted the circular introduced in evidence was one he used for advertising purposes, the court did not err in refusing to sustain his objection to its admissibility. This would likely show in what way he held himself out. Of this we cannot judge; for, although it was introduced in evidence, it is not contained in the record. The circular, when introduced, would speak for itself, and it was not error to refuse to permit witnesses to testify as .to its contents. There does not appear to have been used any terms needing explanation; at least the bill does not so state nor contend. The fact he did not hold himself out as a “physician and surgeon” would not prevent his conviction if he practiced medicine within the meaning of that term as defined in the Revised Statutes.

We have carefully read each of the bills of exceptions, and are of the opinion that none of them present error, and the judgment is therefore affirmed.
      <£=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    FLETCHER v. STATE.
    (No. 3716.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Prostitution <§=>4r-PR0cuRiNG — Evidence —Sufficiency.
    In a prosecution against defendant for unlawfully giving the name of his wife to another for the purpose of enabling the latter to have sexual intercourse with her, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dee. Dig. <®=34.]

      2.Criminal Raw <©=5595 — Continuance — Grounds — Intoxication oe Witnesses.
    In a criminal prosecution, it was not error to refuse a continuance, where the affidavit of the absent witness stated that he had seen the prosecuting witness intoxicated at about the time the offense was'alleged to have been committed ; the fact of the witness’ intoxication not rendering him incompetent.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. <@=5595.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Callie Fletcher was convicted of giving the name of his wife to another for the purpose of enabling the latter to have sexual intercourse with her, and he appeals.
    Affirmed.
    E. S. McAlester and Thos. P. Steger, both of Bonham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The charging part of the affidavit and information is that on or about the 13th day of February, 1915, Callie Fletcher unlawfully gave to Albert Critten-den the name of Ida Fletcher for the purpose of enabling Albert Crittenden to have unlawful sexual intercourse with and to meet said Ida Fletcher.

The facts are less than a page in length, and are made alone by the testimony of Albert Crittenden. He says:

“1 am a single person, and room over the Rag'sdale Building, over what is called Sid Smith’s store. I keep a room furnished ther.e, and, in addition to the ordinary furniture of an unmarried man, I keep a small oil cooking stove. I keep this to cook game on some time, as I hunt a good deal. I do not eat there regularly, and only have this stove to cook game on when I desire. I know the defendant, Callie Fletcher. There he sits in the courtroom. About the 13th day of February he came to my room. There was no one there but he and I. After remaining in my room some time, he asked me what I was doing with that stove. I told him I kept it there, and sometimes cooked my game on it after going hunting. He said to me that he would bring his wife, Ida, up there, and she could cook me a meal on it. I told him I did not eat here in the room, but only used the stove to cook game on occasionally. The defendant said that was all right; he would bring his wife, Ida, up there and leave her with me, and she would cook me a good meal. I said, ‘No,’ and the defendant said he would bring Ida, his wife, up there and leave us alone there together and would go off. He said, ‘You know Ida.’ I said to him, “Callie, you are a damn fool,’ and got up and left, he coming with me.”

This is the entire statement of facts, except the venue and date.

Under our statute this testimony is sufficient to prove the case. Appellant asked for a continuance, which was overruled and made a ground of the motion for new trial. The absent witness, Cole, filed an affidavit in connection with the motion for new trial as to what his testimony would be. I-Ie says that he was acquainted with defendant and the prosecuting witness, Crittenden; that he (witness) had been summoned as a witness for the defendant, Fletcher; that on the 13th day of February, 1915, he saw Crit-tenden several times, and that on said date, immediately before and after the occasion on which defendant is alleged to have made certain statements to the witness Crittenden, on which statements the affidavit and information is based, he (said witness Cole) was with Crittenden in his (Crittenden’s) place of business, and that on each of said occasions the witness Crittenden was drunk. We are of opinion there was no error in refusing this continuance. This witness does not show the state of drunkenness, or that he was too drunk to know what he was doing. If he was drunk at the time he was in his room, that fact could have been proved by Critten-den, or he could have been asked about it. This seems not to have been done. The mental status of a defendant by being drunk would not be an excuse for crime, and it could only be given in mitigation, if it is worth anything, and the ineonclusiveness of the statement of Cole does not place the matter in such attitude the defendant is entitled, we think, to the continuance. The same rule or similar reasoning would apply to witness’ testimony. It would not render him incompetent as a witness ordinarily. It was not sought to even prove by present testimony such condition.

The judgment therefore will be affirmed.
      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McDONALD v. STATE.
    (No. 3704.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <©=>844 — Instructions — Generality of Objections.
    The objection to a charge that it did not directly submit the issues as raised by the evidence, and did not instruct on certain named subjects, is too general to point out any specific error, as required by the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2025; Dec. Dig. <@=5844.]
    2. Criminal Law <@=51109- — Harmless Error —Admitting and Striking Evidence — Admission of Evidence.
    Admission of evidence of propositions of defendant in seduction to witness was harmless, where it was stricken out, and the jury instructed to disregard it; the jury having assessed the lowest punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=51169.]
    3. Criminal Law <@=5398 — Evidence — Contents of Lost Letter.
    Witness, having lost a letter to her, could testify to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. <@=5398.]
    4. Criminal Law <@=>1109 — Reception of Eviden ce — Objections.
    Where proper objection was not made till after witness had testified to part of the contents of a letter, and was then sustained, there was no error; the court having previously instructed that, under such circumstances, testimony should not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@^1169.]

      5. Witnesses <§=5369 — Impeaching Testimony.
    To impeach a witness for defendant in seduction, the state may show witness prescribed for prosecutrix to produce an abortion.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1187, 1188; Dec. Dig. <§=>369.]
    6. Criminal Law <§=>1169 — Harmless Error —Admission oe Evidence.
    Erroneous admission of testimony is not ground for reversal; the same fact having been testified to by another, without objection:
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <§=>1169.]
    7. Criminal Law <§=a413 — Evidence—Self-Serving Declarations.
    Refusing to allow defendant in seduction to show his previous statements to persons of his contemplated marriage to another than prose-cutrix, it not being shown or attempted to be shown that they had been communicated directly or indirectly to prosecutrix, was not error, but it was enough to allow him to show that they had also been made to other persons more likely to communicate them to- prosecutrix.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <§=> 413.]
    8. Affidavits <§=>5 — Authority to Take — Attorney of Accused.
    Affidavits sworn to before defendant’s attorney are not entitled to consideration on his motion for new trial.
    [Ed. Note. — Por other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. <§=>5.]
    9. Criminal Law <§=s1156 — Appeal—Discretion-Denial of New Trial.
    Denial of a new trial on the ground of newly discovered evidence will not be disturbed, unless it appears that the trial court abused its discretion to defendant’s prejudice.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. <§=> 1156.]
    Appeal from District Court, Denton County ; C. P. Spencer, Judge.
    J. T. McDonald was convicted, and appeals.
    Affirmed.
    Owsley & Owsley, of Denton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of seduction, and assessed the lowest punishment. It is useless to detail or discuss the evidence. There can be no question as to its sufficiency to sustain the verdict There was some conflict in the evidence. That of the appellant and his witnesses, if believed, would have been sufficient to have authorized his acquittal. That question was for the jury, however, and not for this court The prosecutrix was amply ■ corroborated. Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006; Nash v. State, 61 Tex. Cr. R. 269, 281, 134 S. W. 709; Gillespie v. State, 73 Tex. Cr. R. 602, 603, 166 S. W. 135.

The only objections to the charge of the court, after it had been submitted to appellant’s attorneys, and before it was read to the jury were “that the same did not directly submit the issues as raised by the evidence, and did not instruct on lust, passion, or fear,” and that the court refused to give his 11 special charges. These objections, under all of the decisions, are too general to point out any specific error, as required by the statute. However, we may discuss his refused charges herein later. The court gave a full and correct charge submitting every question raised by the evidence.

Appellant has several bills to the admission and exclusion of certain evidence and the action of the court pertaining thereto. His first sets up that, while Renza Mitchell, the mother of the prosecutrix, was on the stand, certain questions and her answers thereto, which are copied in the bill, making some six typewritten pages, were had. This bill gives the questions and answers, his objections to some of them, the court’s ruling, what the district attorney said, etc. The court, in approving the bill, did so with this qualification:

“When this witness was on the stand, she did not speak very plainly and talk from the point, as is often the case with negro witnesses, and her testimony up to the statement, in substance, that the defendant had made a proposition to her for carnal intercourse, would hardly indicate that she had such in mind, but I understood therefrom that she was meaning a conversation with defendant regarding his mistreatment of her daughter, who was a pupil of the defendant in the colored school at Denton. So soon as it became apparent that she had in mind an illicit proposition to herself by defendant, I immediately struck out the testimony, and instructed the jury not to consider the same. I think the proceeding had no effect on the jury whatever.”

In our opinion, this bill, as explained by the judge, presents no reversible error. The jury assessed the lowest punishment. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 869; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Martoni v. State, 167 S. W. 351.

In his next bill he complains that, when the witness Leta Mitchell, prosecutrix, was testifying, she was permitted, over his objections, first, to testify to the contents of a letter she had received from appellant. She testified that she had lost it. The court, in qualifying his bill on this point, states that she had lost that letter, which rendered its contents admissible. The court was correct in this. Then it appears the witness was asked about a letetr she had written to the appellant. As to this the court, in quali fying and approving the bill, said:

“With reference to the letter she claims to have written defendant, objection was sustained to her telling the contents. However, some parts of it she had told over objection of defendant, but, when the objection was made that defendant had been given no notice to produce it, the objection was sustained, and I had previously stated to the jury that, when an objection was sustained to any proffered testimony, they should not consider it, even though some part of it had been heatd by them, as it frequently occurs that a portion of a witness’ answers appears unobjectionable, and more of it shows the whole to be inadmissible.”

As qualified, this hill shows no error.

In his nest bill he complains of the testimony of Renza Mitchell, introduced in rebuttal, to the effect that in June, 1914, when her daughter, the prosecutrix, was sick, caused by her pregnancy, Mrs. Lawson, one of the defendant’s material witnesses, called on her and gave her a prescription for cotton root to produce a miscarriage on Leta. What the prescription was is not otherwise disclosed than as stated. In approving the bill, the court qualified it as follows:

“This bill is approved, with the qualification that the witness Mrs. Lawson had testified in favor of the defendant and against the contention of the prosecutrix, and showed considerable interest in the defense, as the court thought, and this testimony was admissible, in the opinion of the court, as affecting the credibility of the said Mrs. Lawson, and was limited orally to the jury for such purpose, and perhaps in the charge, which is not now accessible."

The charge did so limit it. Mrs. Lawson denied that she had given any such prescription. Appellant contends that, as Mrs. Lawson so denied, the state was bound by her denial, as she was attempted to be impeached on an immaterial matter. His contention does not apply in this case. The law is well established that the opposite side may show animus and prejudice on the part of the adverse witness towards him and its extent, and that in such examination great latitude is allowed when the object is to impeach the credit of the witness; also that motives which operate on the mind of the witness when he testified are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state, or status, which, fairly construed, might tend to affect his credibility. Pope v. State, 65 Tex. Cr. R. 51, 143 S. W. 611; Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181; Cain v. State, 68 Tex. Cr. R. 517, 153 S. W. 147; Burnaman v. State, 70 Tex. Cr. R. 365, 159 S. W. 244, 46 L. R. A. (N. S.) 1001; and authorities in the opinions in said cases.

Besides this, before Renza Mitchell testified, her daughter, Leta, had testified to the same thing, without any objection thereto by the appellant, as shown by this record. As frequently held by this court:

“The erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to.” Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; and many other cases.

By other bills appellant complains that the court refused to permit him to prove by the superintendent and some of the trustees of the public schools at Denton, white men, that about June, 1913, when they first employed him as a teacher in the colored schools at Denton, he then told them he intended to get married, and that on another occasion he so told them. The court, in explanation of these 'bills, refusing to permit such testimony, shows that he did so because they were not shown or attempted to be shown to have been communicated, directly or indirectly, to the prosecutrix, and that they were therefore self-serving, but that all other testimony by all other negro witnesses (the appellant and the prosecutrix being negroes) as to statements by appellant of his approaching marriage with a woman other than prosecutrix, or his claimed intended marriage, were admitted, and that all other such statements, where it was thought prosecutrix would likely learn of it, were admitted. The record shows that many of the witnesses did testify to said declarations. These bills present no error.

Notwithstanding the court’s refusal to give any of his special charges is not raised and presented in such a way that we could consider them, yet we have examined all of them, and, where proper to be given, they were clearly embraced in the court’s charge, and those not so embraced should not have been given, and the refusal to give them presents no error.

The only other question is that appellant has the affidavits of three persons attached to his amended motion for new trial, claiming that they show newly discovered evidence which he claims ought to have resulted in the court’s granting him a new trial. The first of these affidavits is sworn to before one of his attorneys, which as has been uniformly held prevents its consideration. Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, and many cases to the same effect. The appellant’s motion on this ground was controverted and vigorously contested by the county attorney. It was all threshed out before the trial judge.

“It is well established by the decisions of this court that a motion for a new trial on this ground is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Tex. App. 269; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. App. 209; Terry v. State, 3 Tex. App. 236.
“It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court: (1) That the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence, and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new trial is granted; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Tex. App. 502 [18 S. W. 90]; West v. State, supra; Duval v. State, 8 Tex. App. 370; Gross v. State, 4 Tex. App. 249; Hutchinson v. State, 6 Tex. App. 468.” White’s Ann. C. C. P. § 1149; Gray v. State, 65 Tex. Cr. R. 206, 207, 144 S. W. 283, 284.

We think the court’s action in refusing a new tria] on this ground was correct.

The judgment is affirmed.
      át=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes