author: HARPER, J. DAVIDSON, J.

text:
    PHILLIPS v. STATE.
    (No. 3043.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Dissenting Opinion June 3, 1914.)
    1. Intoxicating Liquors (§ 138) — Delivery to Railroad Company — Shipment into Local Option Tebbitoby — Baggage.
    Pen. Code 1911, art. 603, provides that every person who shall place or have placed any package or parcel, of whatever nature, containing intoxicating liquor for shipment or transportation, etc., into local option territory, without labeling it intoxicating liquor, shall be guilty. Held, that such section covers and prohibits such a shipment of intoxicating liquor as baggage, without being properly labeled.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 148; Dec. Dig. § 138.)
    2. Cbiminal Law (§ 108) — Venue—Location op Oepense.
    Accused delivered a trunk containing intoxicating liquor, unlabeled, to a railroad company at D. for shipment to G. in U. county, knowing that it would be necessary for the carrier to transfer the liquor to a connecting carrier at a junction point in Ü. county; the initial carrier’s line not running to destination. Held, that accused thereby made the initial carrier his agent to deliver the liquor to the connecting carrier in U. county, which constituted an offense separate from that committed by the original delivery of the liquor to the. initial carrier at D., for which accused could be properly prosecuted in U. county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 220-226, 230, 231, 234; Dec. Dig. § 108.]
    3. Cbiminal Law (§ 20) — Separate Criminal Acts.
    When one puts in motion a set of circumstances, knowing the results to follow, he is responsible for all criminal acts that are the natural and intended results of his action.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 21, 24, 25; Dec. Dig. § 20.]
    4. Jury (§ 103) — Jurors—Qualifications.
    Where a juror testified that he had formed and then had an opinion as to the guilt or innocence of accused, but could lay such opinion aside and go into the box and render a fair and impartial verdict based on the testimony, without regard to what he had previously heard or the opinion he then had, he was competent, since the disqualifying conclusion must involve the guilt or innocence of accused to the extent that it would influence the verdict.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460-479, 497; Dec. Dig. § 103.]
    Davidson, J., dissenting.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    E. Phillips was convicted of causing to be delivered intoxicating liquor to a railroad company for shipment into local option territory, without labeling it intoxicating liquor, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of delivering and causing to be delivered intoxicating liquor to a railroad company for shipment into local option territory, without labeling it intoxicating liquor. The proof would show that appellant left Gilmer, in Up-shur county, and went to Dallas, carrying a trunk with him. The night of the same day he returned from Dallas to Gilmer and had the trunk checked from Dallas to Gilmer, in Upshur county. The trunk was seized when it arrived at Gilmer and found filled with whisky, packed in sawdust. The trunk was not labeled “intoxicating liquors” as required by law.

Appellant’s first contention is that this constitutes no violation of law, as the liquor was carried in a trunk, checked as baggage. The testimony shows that one can carry 150 pounds as baggage, and this appellant’s baggage was excessive, and he had to pay 70 cents excess charges; but the question is presented: Gan one check intoxicating liquor as baggage and thus evade the provisions of article 606, P. 'O.? This article reads, “Each and every person * * * who shall place or have placed any package or parcel, of whatever nature, containing any intoxicating liquor, * * * for shipment or transportation,” etc., without labeling it, shall be guilty. This language is broad enough, and it was the evident intent of the Legislature to embrace this character of shipment of intoxicating liquor, as well as that covered by express or freight, for it says “place and caused to be placed with the railroad for transportation”; and the court did not err in refusing to give peremptory instructions on this ground.

The next contention is that, as he placed the liquor with the Texas & Pacific at Dallas for transportation to Gilmer, the venue of his offense, if any, would be in Dallas county, and not in Upshur. Ordinarily this would be true, for venue is placed, under the statute, where the liquor is delivered or caused to be delivered, and not at the point to which it is transported, and the fact that it was received by appellant from the transportation company in Gilmer would not give jurisdiction to Upshur county. But appellant overlooks another phase of the testimony. It is true he originally delivered the intoxicating liquor to the transportation company at Dallas, and there had it checked to Gilmer, in Upshur county. He knew at the time the Texas & Pacific did not run to Gilmer, and could not itself transport the liquor to Gilmer, but would necessarily be compelled to deliver it to the St. Bouis & Southwestern Railway at Big Sandy for transportation from Big Sandy to Gilmer. Big Sandy is in Upshur county. When he delivered the liquor to the Texas & Pacific Railway at Dallas, with the knowledge that it, the Texas & Pacific Railway, would be compelled to deliver to the St. Louis & SQUthwestern Railway at Big Sandy, did that constitute the Texas & Pacific his agent to make such delivery? The statute is, one who shall deliver or cause to be delivered to a railroad company intoxicating liquor, without .marking it, for transportation, etc., is guilty of the offense. Of course appellant committed one offense when he placed the trunk with the Texas & Pacific at Dallas for transportation; of this offense Dallas county would alone have jurisdiction. But did he not commit another offense when the Texas & Pacific, as his agent, placed the intoxicating liquor with the St. Louis & Southwestern Railway for shipment from Big Sandy to Gilmer? There is no doubt, if the Texas & Pacific Railroad knew that it was receiving this liquor, unlabeled, for shipment, it could be prosecuted and convicted of this offense, and the St. Louis & Southwestern Railway, if it knew when that road received it, the trunk contained intoxicating liquor, could also be prosecuted for the offense, and yet it was not guilty as principal, or otherwise, when the Texas & Pacific received it at Dallas, and its guilt did not arise until it received it at Big Sandy from the Texas & Pacific. We are of the opinion that, when appellant delivered the liquor to the Texas & Pacific at Dallas for transportation to Gilmer and checked it through to Gilmer, knowing that to do so it would be necessary for it to be- delivered to the St. Louis & South)western for transportation to Gilmer, he, within the meaning of the statute, caused the delivery to be made, and caused the package to be placed with the St. Louis & Southwestern Railway for shipment over that line and was a party to another separate and distinct offense from that committed in Dallas county, for the St. Louis & Southwestern committed an offense when it received it in Upshur county, and of this latter offense Up-shur county did have jurisdiction. When one puts in motion machinery, knowing the results to follow, he is responsible for all criminal acts that are the natural and intended results of his action. Therefore the court did not err in refusing the instruction presenting this issue.

In another bill appellant contends that the court erred in not sustaining a challenge as to the juror Joe Pickett. The bill alleges:

“That he was a juror for the county court of Upshur county at the September term, 1913, at which term the defendant, E. Phillips, who is the defendant in this case, was tried, on a charge of carrying a pistol. It was claimed in said cause that a pistol was taken off of the person of E. Phillips at the depot in Gilmer at the time the officers claimed to have procured some trunks that had been shipped to Gilmer over the St. Louis Southwestern Railway Company by B. Phillips, being the shipment of liquors involved in this case; that he heard the testimony of one witness in that trial, and from what he heard he formed and now has an opinion as to the guilt or innocence of the defendant in this case. Said juror further testified that he could lay aside said opinion and go into the jury box and render a fair and impartial trial in this case based alone upon the testimony introduced in this trial, and without regard to what he had heard before or the opinion he now has. Thereupon the defendant challenged said juror for cause upon the ground that he was not a fair and impartial juror as contemplated by law, in that he had already formed an opinion as to the guilt of the defendant. The court overruled said challenge, and, the defendant having exhausted all his peremptory challenges on other jurors objectionable to him, the said Joe Pickett was permitted to and did' sit as a juror in said cause, over defendant’s objection.”

The court, in approving the bill, says:

“Juror Pickett testified that he had no fixed opinion, and that if chosen on this jury to try the ease that he would not consider what he had heard, but would be governed only by the evidence as brought out on the trial of this case.”

Were this a question of first impression, the writer individua]ly would be inclined to hold that a juror that had heard any portion of the testimony on the trial of a cause, and had formed an opinion therefrom, should be held to be disqualified upon challenge for cause; but the unvarying rule of decision in this court since the rendition of. the opinion in the case of Thompson v. State, 19 Tex. App. 594, is that a juror is not disqualified by the mere fact that he has heard the evidence on a former trial of the case. The disqualifying conclusion must involve the guilt or innocence of the accused to the extent that it will influence his verdict. This ease was followed in Johnson v. State, 21 Tex. App. 379, 17 S. W. 252; Steagald v. State, 22 Tex. App. 488, 3 S. W. 771; Kennedy v. State, 19 Tex. App. 630; Pierson v. State, 21 Tex. App. 57, 17 S. W. 468; Peddy v. State, 31 Tex. Cr. R. 548, 21 S. W. 542. In the case of Suit v. State, 30 Tex. App. 322, 17 S. W. 459, this court held, speaking through Judge Davidson:

“Under the statute, in order, to disqualify a juror on account of a conclusion on his part as to the guilt or innocence of the party on trial, two things are necessary: (1) That there is in some way established in the mind of the juror a conclusion as to the guilt or innocence of such party. (2) That such conclusion will influence the juror in his action in finding a verdict. ‘Established’ has no statutory definition given it by our statutes; but as usually understood it means settled, fixed, confirmed. Such is the definition found in Bouvier’s Law Dictionary. * * * Under the statute, the conclusion formed by the juror must be such as will prevent him from finding a fair and impartial verdict in the case upon the law and evidence. The ultimatum of the matter is, can the juror give a fair and impartial verdict in the case upon the law and facts? If so, he is competent; if not, he is incompetent. * * * The juror swore that he could render a fair and impartial verdict upon the law and the evidence. The mere fact that a juror has established in his mind a conclusion of the guilt or innocence of the party on trial is not a sufficient cause -for disqualification. That conclusion, if entertained, must go further and be of such a character ‘as will influence him in finding nis verdict.’ Code Grim. Proc. art. 630, subdiv. 13. The court did not err in overruling the cause of challenge urged against the juror.” Reed v. State, 32 Tex. Cr. R. 26, 22 S. W. 22; Adams v. State, 35 Tex. Cr. R. 295, 33 S. W. 354; Trotter v. State, 37 Tex. Cr. R. 472, 36 S. W. 278; Sawyer v. State, 39 Tex. Cr. R. 559, 47 S. W. 650; Morrison v. State, 40 Tex. Cr. R. 491, 51 S. W. 358; Long v. State, 59 Tex. Cr. R. 111, 127 S. W. 551, Ann. Cas. 1912A, 1244.

The complaint and information in this case charges an offense under, the provisions of this article of the Code, and is not subject to the criticisms contained in the motion to quash.

The judgment is affirmed.

DAVIDSON, J.

(dissenting).

I have been unable to agree with my Brethren in the disposition of this case. Appellant was indicted for shipping intoxicants into local option territory, without having labeled or marked it “intoxicating liquors.” There is a statute which requires, where a party ships intoxicating liquors into local option territory, he must place or cause to be placed on such shipment the fact that it is intoxicating liquors. The evidence discloses that the intoxicants were placed in a trunk and shipped as baggage from Dallas to Gilmer, in Upshur county. The facts further show that the trunk was shipped over the Texas & Pacific Railway Company to a point of intersection with the Cotton Belt Railroad, and from that point on shipped and continued to its destination over the Cotton Belt road. The trunk was not labeled as required by the statute, and appellant was indicted and convicted in Upshur county, the point of destination of the shipment. The statute reads:

“Each and every person in this state who shall place or have placed any package or parcel of whatever nature containing any intoxicating liquor with any express company, railroad company or other common ' carrier for shipment or transportation to any point in any county, justice precinct, school district, city or town or subdivision of a county, within this state, where the sale of intoxicating liquors has been prohibited under the laws of this state, shall place in a conspicuous place on such package or parcel the name of the consignor and consignee, and the words ‘intoxicating liquors’ in plain letters.”

Then follows the punishment. Appellant did not comply with the terms of this statute, but shipped it in his trunk as baggage, without placing the matter required upon the trunk. My Brethren disposes of the case upon the theory and hold that it is a new offense on the part of the appellant at every point where the connecting carriers intersect each other; that is, wherever there is a change from one common carrier to the other the defendant is guilty of the shipment from each point, or rather an original shipment at each point. To this construction I cannot agree. Under the terms of the statute the offense was complete, so far as the defendant was concerned, when he placed the goods with the Texas & Pacific Railway at Dallas, the point of shipment. It passed then beyond his control, and his violation of the statute, if it occurred, occurred at the point of shipment. The statute nowhere undertakes to make a new offense at the point where the initial carrier conveys it to a connecting line. In other words, it was a through shipment from Dallas to Gilmer. It was not provided by statute that this should be a new offense every time there was a transfer from one connecting line to another, nor is there any provision in the statute which gives any county jurisdiction of the offense, except the county where the shipment occurred. We have statutes which provide that venue may be in any one of several counties, dependent upon the terms of the statute. But these are exceptions to the rule, and plainly so provided by the statute. After providing venue in special cases, we have this general statute:

“In all cases except those enumerated in the previous articles of this chapter the proper county for the prosecution of offenses is that in which the offense was committed.”

This offense was committed in Dallas county, if committed at all. Prom that point appellant did not reship or undertake to reship the goods. Théy were placed in possession of the common carrier at Dallas on through shipment to the point of destination. The statute does not provide that it shall be an offense by shipper at every point where the transfer occurs to a connecting line, nor does it undertake to -give any county jurisdiction, except that in which the shipment occurred, or as the statute says, “where the offense was committed.” My Brethren in their decision created a new offense by judicial construction or decision not made by the Legislature. Our statute provides there shall be no offense in Texas, unless provided by the Legislature. They have not authorized, nor could they authorize, the court to create offenses. This is not a continuous offense; therefore we must be relegated to the express language of the above statute itself in obedience to another statute which says that the language used in denouncing statutory offenses must be taken in its ordinary acceptation and given the sense in which it is used, that is, according to the plain import of the words employed by the Legislature. It would hardly be contended that on the through shipment of goods under a civil contract the shipper would be held responsible for the transfer from one connecting line to another connecting line, unless there was some special provision in the contract; the usual rule being, as I understand the law, where a shipment occurs under civil contract on a through bill of lading, that the shipper is not responsible for the transfer of goods to a connecting line between the point of shipment and the destination. The initial common carrier takes the goods under contract to see that the goods are delivered at the point of destination. The shipper is not responsible for transferring to the custody and care of connecting common carriers. I deem it useless to follow this matter. The decision, as I understand the law, is so obviously wrong it would hardly need discussion; but I place these observations of record as my dissent. I think the judgment ought to have been reversed, and the prosecution dismissed. The ease ought to have been tried for a violation of the law in Dallas county, where the shipment occurred. I therefore dissent.


source: Caselaw Access Project

author: MILLER, Special Judge.

license: Public Domain

text:
    SORELL v. STATE.
    (No. 3053.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    1. Witnesses (§ 255) — Refreshing Recol- - LECTION.
    A school teacher who testified that she always made a correct record of the age of the children in her room as furnished by them, but that she had no independent recollection of the age of a certain child, could testify as to the age of the child by referring to the memorandum made by her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890'; Dec. Dig. § 255.]
    2. Criminal Law (§ 726) — Trial — Argument oe Prosecuting Attorney.
    The statement of counsel for accused in his argument to the jury that the fact that the father of accused was rich should not be considered against accused did not justify the argument of the prosecuting attorney that, where a family had plenty of money, accused would be enabled to gather around him influential friends, and that money could beat any case, but that the jury should pass on the question of the guilt of accused as though he was the humblest citizen.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    3. Criminal Law (§ 1171) — Trial — Argument oe Prosecuting Attorney.
    Where prosecutrix and her family were only in moderate circumstances, and labored for a living, while the father of accused was well to do, and the witnesses testifying for accused were ministers, wives of ministers, and other people of equal standing, the argument of the prosecuting attorney that, where a family had plenty of money, that fact would enable accused to gather around him influential friends, as had been done in this case, and that it had been stated that money could beat any ease, was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Criminal Law (§ 1037) — Argument oe Prosecuting Attorney — Objections — Manner oe Making.
    Accused, objecting to the argument of the prosecuting attorney, should, in addition to the making of an oral request for a charge - directing the jury to disregard the argument, present a special charge on the subject, though, where the argument is very harmful, the error may be presented when only the oral request has been made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    5. Criminal Law (§ 1169) — Evidence—Conduct oe Third Persons.
    Where accused denied any knowledge of any attempt of his father and his attorney to manufacture testimony to impair the reputation for virtue of a woman testifying for the state, the admission in evidence of the effort of the father and attorney, including a letter written by the attorney, was prejudicial error, especially where the penalty assessed was much higher than is usually assessed on conviction of similar offenses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, San Saba County; Clarence Martin, Judge.
    F. W. Sorell was convicted of crime, and he appeals.
    Reversed and remanded.
    Faver & Allison and Flack & Flack, all of San Saba, W. F. Ramsey and O. L. Black, both of Austin, and H. B. Leonard, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   MILLER, Special Judge.

Appellant "was charged with the offense of rape committed on a girl alleged to be under 15 years of age, and his punishment assessed at 15 years’ confinement in the state penitentiary.

The evidence was in sharp conflict on two questions: Whether or not appellant had sexual intercourse with the girl; and, if he did, whether or not she was under 15 years of age. Callie Edmondson testified positively to an act of intercourse; her father, mother, and sister corroborate her, in that they testify that appellant admitted to them that he did have intercourse with the girl, and agreed to leave the county if they would not prosecute him. One of the defenses urged by appellant was that the charge was a conspiracy to extort money from him; he denying positively that he made any confession to the mother or other members of the family, and denied any act of intercourse. He introduced the evidence of a number of witnesses who testified that the reputation of the prosecuting witness for truth and veracity was had, and a number of ladies who testified that her reputation for virtue and chastity was also bad. Some witnesses testified that statements made to them by the prosecuting witness would tend to support the contention that the prosecution was instituted to extort money.

The family Bible of the Edmondson family was introduced, and this showed her to have been born in November, 1896, and this would make her more than 15 years old at the time of the commission of the alleged offense. The father testified he made the entry, but it was a mistake, and Callie was not, in fact, born until in November, 1897, which w;ould make her. only 14 years old at the time. He testifies that he knows by reason of the fact that she was born in November after the marriage of his son in February, 1897, and the mother and brother also so testify. Appellant introduced other testimony tending to show that the girl and the mother had made statements showing her to be over 15. Appellant also introduced Mrs. Walters as a witness, who testified she taught in the San Saba public schools during the years 1907 and 1908; that Callie Edmondson attended the school, and she always made a record of the age of the children in her room, and would have testified, if permitted, that while she had no independent recollection of the matter, yet she knew the record presented to her was made by her either in 1907 or 1908; that the age of Callie Edmondson was placed on such roll on information furnished her by the pupil; and that Callie Edmond-son then stated to her that she was 11 years of age. This would be material, in that, if the girl was 11 years old in either 1907 or 1908, at the time the roll was made, she would be more than 15 years old at the time of the alleged rape. However, the court, in qualifying the bill, states that the witness stated “she did not know whether or not she had it down correct.” Appellant undertook to except to this qualification of the judge, and attaches the affidavit of Mrs. Walters to the bill, in which she states:

“The affiant further says that, had she been permitted to do so, she would have testified upon said trial that the book above mentioned contained a statement of Callie Edmondson’s age as being 11 years either on the 1st of September, 1907 or 1908, the witness could not say which year, and that said statement, so contained in said book, was placed there by the witness at said time based upon statements made to her, at said time, by the said Callie Edmondson.”

We had this question before us in the case of Misher v. State, 152 S. W. 1051, and held:

“If a witness, on looking at the writing, is able to testify that he knows the transaction therein noted took place, though he has no present memory of it, his testimony is admissible”—citing many authorities from this and other states, and to which case we refer for further discussion of the question.

We do not understand the qualification of the court, and, if he meant to say that the witness testified that she could not tell whether the memorandum was a correct statement of what the girl told her, then no error Vfould be presented; but, if it only means that the witness said she did not know whether the age was correct or not, but' from the memorandum she is able to say that she made the memorandum from what the girl told her, and she is able to say that from this memorandum she knows that she correctly recorded what was then told her by the girl, the evidence would be admissible, and the court erred in excluding it. The witness in the affidavit attached to the bill does so state, and, if the exception to the court’s charge had been properly reserved (Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368), we would hold that this bill presented error. On another trial, if the witness testifies as she says in the affidavit she would have done if the court had permitted her to do so, the evidence should be admitted, as it bears on a very material issue in the case, the age of the girl.

In another bill appellant alleges that the district attorney in his closing address said:

“That money seemed to gather influential friends; that, Sorell being rich, they were able to gather around them influential people; and that it had frequently been stated that money could beat any case.”

In approving the bill the court states:

“That Mr. Leonard, of counsel for defendant, had argued to the jury that defendant’s father was a rich man, but that fact should not be considered against the defendant. The district attorney, in answer to this argument, stated that it seemed that in cases where the defendant or his family had plenty of money that this condition would enable the defendant to gather around him influential friends, as had been the result in this case,'and that it had been stated that money could beat any case, but that this ought not to be the case; that this defendant should have his case passed on and the question of his guilt determined as though he was the humblest citizen in the court.”

The court further states that counsel came to him and excepted to these remarks, and orally requested him to instruct the jury not to consider such remarks, but no written request was presented. We hardly think that counsel for appellant stating that “appellant’s father being rich should not be considered against him” authorized counsel for the state to say that where a family had plenty of money, that “this would enable the defendant to gather around him influential friends, as had been the result in this case, and that it had been stated that money could beat any case, and this ought not be the case.”

Under the peculiar facts of this ease, this argument was calculated to be very damaging. The evidence discloses that the young lady in question, and her family, were only in moderate circumstances, and labored for a living. Of course, this was not, and should not be, any reflection on them or either of them. The amount of money one owns makes not the man or the woman. On the other hand, the record discloses that appellant’s father was well to do, and the district attorney undertook to show that appellant’s father and one of his attorneys, or one or the other of them, had undertaken to secure perjured testimony. The evidence further discloses that some of the witnesses who testified in behalf of appellant were ministers of the gospel, wives of the ministers, and other people of equal standing. And in saying this we do not mean to be understood as stating that witnesses offered by appellant were not equally as good people and as worthy of credit, but the fact that the witnesses for appellant were influential should not be to his discredit, and the remarks were of a character that were calculated to create a prejudice against appellant and his witnesses in the light of the testimony in this case.

Of course, to bring himself within the rule, appellant’s counsel, in addition to making the oral request, should have also prepared and presented a special charge; but, where the remarks were very harmful and hurtful, it has been held in some cases to present error when only oral request has been made. Parks v. State, 35 Tex. Cr. R. 380, 33 S. W. 872.

In another bill it is made to appear:

“The district attorney, in the cross-examination of the defendant, asked him if, acting under his (the 'defendant’s) direction, his senior counsel, Mr. Polk Eaver, did not write one Lige Blackburn, a witness in the case, as follows: ‘September 9th, 1913. Dear Lige: I understand you are to be over here in a few days to see about your school matters. Please, when you come, come to my office before you see anybody. I think it a good idea to bring another trustee with you, provided he is of the right kind. Stick a match to this letter. Polk.’ To which the witness replied: ' ‘No, sir; I don’t know anything about that.’ And, in reply to further questions by the district attorney, the defendant further testified as follows: T was not here at San Saba when the application was made for him. I never saw him here in San Saba before this term of court. It is not true that within my knowledge an agreement was made with Lige Blackburn- that in consideration of help being extended him in a criminal charge pending against him in McCulloch county, that he in turn would extend help to me in my case. I never made any such agreement, and I don’t know anything about any such agreement as that. If it was made by anybody I don’t know anything about it. It is not further true that I was informed that the witness Blackburn would, in consideration of receiving help from my father or me in his McCulloch county case, that he would in turn endeavor, as a school trustee, to employ Miss May Edmondson as a teacher in the school where he lived in the southwest part of this county and get her in some compromising position or get her to give some statement contradictory of what she might testify in this court. It is not true that with my knowledge and consent one of my attorneys wrote to Mr. Blackburn to come down here when he came to San Saba about his school business and see him first. I did not direct such a letter as that to be written. It is not a fact that Mr. Pavers wrote under my direction a letter to Mr. E. E. Blackburn to that effect. I possibly might be acquainted with Mr. Pavers’ handwriting. I don’t know who wrote that address, “E. E. Blackburn.” * * * As to whether it is not true that a conspiracy was entered into about Miss May Edmondson, and at the time it was entered into, some time in the summer, she was in the state of Missouri, and not in Texas, and Lige Blackburn, acting under the direction of my attorney and my own, went to old man Edmondson’s place of business and there asked him if he had a daughter who was a school teacher, and told him he wanted to employ his daughter to teach school out there, I don’t know anything about that. As to whether it is not further true, in the pursuance of that conspiracy, and within my knowledge, this man Blackburn did come to the town of San Saba some few weeks ago, and, in company with some other man, go over to Mr. Ed-mondson’s and make inquiry for his daughter May, I don’t know anything about that. With reference to whether Blackburn, under my instruction, did not go to Mr. Edmondson, whether in person or in a letter written to'Miss Ed-mondson, and state she could board at his house at $15 a month, and bad weather he would take her to and from schoolhouse in an automobile, I don’t know anything about that. It is my understanding that Lige Blackburn is acquainted with May Edmondson. I got the information from Mr. Pavers. I did not learn how long that acquaintanceship had lasted and I don’t know anything about when it begun.’ Whereupon the district attorney offered in evidence envelope and letter, which testimony was objected to by the defendant at the time it was offered on the following grounds: Because it was not shown by the examination of the defendant that he knew anything about the letter or why it had been written, or anything about any conspiracy between his father, his senior counsel, Mr. Pavers, and Mr. Blackburn to manufacture said testimony, and because the defendant, under such circumstances, would not be bound by any correspondence that might have taken place between Mr. Blackburn and Mr. Pavers; it not being shown that Dr. Sorell consented to the transaction in any way, shape, or form, or had any knowledge of it, and because said letter and the questions of the district attorney with reference to the same were highly prejudicial to the defendant, and calculated to arouse the prejudices and passions of the jury, and further to discredit and lead the jury to disbelieve all the testimony given and offered by the defendant, and because the same was immaterial and irrelevant to any matter in the case.”

Other questions were propounded along the same line, when Mr. Allison of attorneys for defendant said:

“We ask the court all this evidence, unless some further evidence is introduced to prove the defendant had some knowledge of this transaction, agreed to it or authorized it, that all this evidence be excluded from the jury, and the jury be instructed not to consider it.”

This the court declined to do, and, having refused to strike out this testimony, the defendant’s attorneys felt compelled to introduce the attorney who wrote the letter, intro- - duce the letter in evidence, and have him explain why it was written, and in doing so he placed the responsibility on appellant’s father. He also testified that appellant knew nothing whatever of the letter having been written. On cross-examination, Mr. Pavers was asked if it was not a fact that Blackburn had told him he was not going to testify anything against the girl, because Mr. Sorell (appellant’s father) had promised to. help him out in his case if he would help the old man out of this ease, but the old man (appellant’s father) had laid down, and the witness answered that Blackburn did tell him that the old man had promised to be at Brady court and help him keep off an indictment, and that the old man had failed to come, and that he (Blackburn) had been indicted.

The state offered no other or different proof that appellant knew that the letter in question had been written, or that any effort had been made to get the prosecuting witness’ sister in a compromising position, and get her in position where she could be contradicted on her testimony given in this ease, but the testimony, and all the testimony, adduced, if such conspiracy was entered into, would implicate only Mr. Favers and appellant’s father, and the question arises if appellant’s father and one of his attorneys did enter such conspiracy, and make an effort to carry it out, can appellant be held responsible for their acts, and is such testimony admissible against him when his father was not a witness in the case, and when the attorney took the stand, not to testify to any fact in regard to whether or not appellant was guilty of the offense charged, but merely to explain his connection with the Blackburn incident which, in so far as this record discloses, appellant had no knowledge of at the time, nor was it done at his suggestion or instance, nor is it shown to have met with his approval. To put the matter in its strongest light, if his father made a corrupt agreement with Blackburn, in which Blackburn agreed to testify to certain matters, but to which he did not testify, or if his attorney sought to get Blackburn to do so, and Blackburn refused, would this evidence be admissible against appellant, when it is not shown that he was a party to it, or knew anything about it? If the state had followed the matter up, and by positive testimony, or by circumstantial evidence, shown that this was done with appellant’s knowledge and consent, or at his instance, then it would have been admissible, but, if it was denied by appellant, as he did in this case, the court should have instructed the jury that said matters should not be considered, unless they found that the efforts of Favers and his (appellant’s) father were done with his knowledge. If the father had been a witness in the case, there can be no question the evidence would have been admissible, as tending to show the bias and interest of the father; or, if Favers had been introduced by appellant to prove any fact in his defense, it would likewise have been admissible to prove his interest, etc. Burnaman v. State, 159 S. W. 244, 46 L. R. A. (N. S.) 1091. But his father was not a witness in this ease, and neither was Favers, further than, after the state had been permitted to introduce the above testimony, and the court had refused to strike it out, to explain the matter so that it would not be more hurtful than could be avoided, and to seek to exonerate himself. He had not been introduced as a witness when the testimony was adduced, and after its introduction he did not take the stand to testify to any fact relating to whether appellant was guilty of the offense charged. The rule in this state is correctly stated in Branch’s Criminal Law, § 862:

“Defendant is not bound by, and it is error to prove, the efforts of Ms friends, relatives, or attorneys to induce a witness to leave or suppress or manufacture testimony, or compromise the case, unless it be shown that defendant was connected with or authorized the efforts to tamper with the witnesses. Estep v. State, 9 Tex. App. 367; Favors v. State, 20 Tex. App. 161; Barbee v. State, 23 Tex. App. 203, 4 S. W. 584; Maines v. State, 23 Tex. App. 576, 5 S. W. 123; Rushing v. State, 25 Tex. App. 612, 8 S. W. 807; Nalley v. State, 28 Tex. App. 392, 13 S. W. 670; Luttrell v. State, 40 Tex. Cr. R. 658, 51 S. W. 931; Newton v. State, 41 Tex. Cr. R. 613, 56 S. W. 04; Gann v. State, 57 S. W. 669; Lankster v. State, 42 Tex. Cr. R. 360, 59 S. W. 888; State v. Huff [161 Mo. 459] 61 S. W. 900, 1104; Cogdell v. State, 43 Tex. Cr. R. 181, 63 S. W. 645; Garcia v. State, 74 S. W. 916; Parks v. State, 46 Tex. Cr. R. 105, 79 S.W. 301; Suggs v. State, 46 Tex. Cr. R. 153, 79 S. W. 307; Swain v. State, 48 Tex. Cr. R. 104, 86 S. W. 335; Lara v. State, 48 Tex. Cr. R. 571, 89 S. W. 840; McDaniel v. State, 49 Tex. Cr. R. 47, 90 S. W. 504; Rice v. State, 51 Tex. Cr. R. 281, 103 S. W. 1156; Lounder v. State, 46 Tex. Cr. R. 122, 79 S. W. 552; Barber v. State, 70 S. W. 210; Barnes v. State, 133 S. W. 892.”

It is true that appellant denied any connection or knowledge of these matters; yet, when his attorney took the stand to explain the letter read by the state in the presence and hearing of the jury on cross-examination of Mr. Favers, the state was permitted to show that Mr. Blackburn had stated to him that appellant’s father had promised to aid in his case in Brady, and had failed to do so, etc., and Mr. Favers had testified that appellant’s father had informed him of what Blackburn was expected to testify, and gave this as his reason for writing the letter. All these proceedings would have a teudency to discredit the testimony of appellant, prejudice the jury against him, and create the impression that an effort had been made by his father and attorney to manufacture testimony in his favor, and of necessity discredit to a certain extent the testimony of all his witnesses, and this would be especially true in the light of the remarks of the district attorney heretofore copied herein. We know of nothing that would more inflame a jury than proof that a conspiracy had been entered into to entrap a young lady, by offering a school, for the purpose of getting her in position where her testimony might be impeached and her reputation for virtue and chastity assailed.

We have carefully reviewed all these mat-' ters, and, were they presented properly before us, each or any one of the three would present error, and, while no one of them in and of itself as presented presents reversible error, yet, when we consider all of these matters together in connection with the penalty assessed in this case, we cannot say that these matters did not have a tendency to and contribute to the punishment fixed. It is much higher than is usually assessed in this character of case, and yet, it being within the limit fixed by law, the jury had the right to assess it, and, unless we are convinced these matters contributed to the result, as the record presents them to us, the verdict should not be disturbed. However, the age of the prosecuting witness being a sharply contested issue, and this cloud being improperly cast upon appellant’s witnesses, whether or not an act of intercourse took place, being also sharply contested, appellant denying it, and this cross-examination and testimony having a tendency to discredit him, and it being such matters as would in all cases create a prejudice against one on trial for this character of offense, we are not satisfied to permit the verdict to stand. The record convinces us that these proceedings did contribute to the penalty fixed by the jury, for, if the state had not adduced such testimony, and had not appellant been compelled to undergo such harsh cross-examination about matters which he says he knew nothing, the state not connecting him with this effort to manufacture testimony, which would impair a good woman’s reputation for virtue, the evidence in this case, while it would most certainly support’ a verdict of guilt, yet is not of the character that would ordinarily cause one to receive a penalty of 15 years’ imprisonment in the penitentiary.

Neither the objections to the court’s charge or the other matters presented show any error, and we do not deem it necessary to discuss them. However, as the matters above referred to may have, and, in our opinion, did, cause the jury to assess, a much higher penalty than would otherwise have been fixed, the judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J., concur. DAVIDSON, J., disqualified.


author: HARPER, J.

text:
    WILLIAMSON v. STATE.
    (No. 3112.)
    (Court of Criminal Appeals of Texas.
    May 13, 1914.
    Rehearing Denied June 10, 1914.)
    1. Cbiminal Law (§ 982) — Suspension of Sentence — Reputation of Defendant — Evidence — Admissibility.
    Where accused files a plea for a suspended sentence under Acts 33d Leg. c. 7, which provides that the court shall permit testimony of the general reputation of accused to enable the jury to determine whether to recommend suspension of sentence* he puts his reputation in issue, and any legitimate evidence bearing thereon is admissible, and the state may show his bad reputation as a law-abiding citizen by proving his arrest for offenses not involving moral turpitude.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    2. Witnesses (§ 361) — Character Witnesses — Cross-Examination.
    Where witnesses for accused, who filed a plea for a suspended sentence, testified that accused’s reputation for truth, veracity, honesty, and as a law-abiding citizen was good, the state on cross-examination could ask them whether they had not heard of accused being charged with violations of the law, though such violations did not involve moral turpitude.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    3. Witnesses (§ 337) — Character Witnesses — Cross-Examination.
    "Where accused filed a plea for suspended sentence, and testified in his own belialf, the state on cross-examination could ask him as to the number of times he had been arrested and confined in jail, though the offenses did not involve moral turpitude.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1113,1129-1132,1140-1142,1146-1148; Dec. Dig. § 337.]
    4. Criminal Law (§ 982) —Plea for Suspension of Sentence — Statutory Provisions.
    That accused has previously been convicted of a felony bars him of the right to file a plea for suspension of sentence under Acts 33d Leg. c. 7; but, where he has not been convicted of a felony, he may file a plea, and where his reputation justifies the suspension of the sentence on the theory that he will reform, if clemency is extended, and that society will not suffer, it may be done, but, where his reputation as shown by the life he has lived is such that there is but little or no hope of reformation without punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    5. Criminal Law (§ 673) — Evidence—Instructions.
    Where the evidence of the bad reputation of accused, who filed a plea for suspension of. sentence, based on his arrest for offenses not involving moral turpitude, was received to enable the jury to determine whether they would suspend punishment in case of his conviction, the court should specifically charge that the testimony should not be considered as affecting the credibility of accused as "a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    6. Witnesses (§ 337) — Credibility—Criminal Charges.
    That accused, who testified in his own behalf, had been charged with robbing a railroad car did not affect his credibility as a witness, where it was shown that, after investigation, no indictment was returned against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. |§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    7. Criminal Law (§ 1038) — Instructions— Objections — Review.
    Under Code Or. Proc. art. 743, as amended by Acts 33d Leg. c. 138, requiring that the charge before being read to the jury be submitted to counsel, who must at that time present in writing any objections, the court on appeal will not consider the correctness of instructions, where no objection was made until after verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.],

      Appeal from Criminal'District Court, Dallas County; Robt. B. Seay, Judge.
    J. C. Williamson was convicted of tbeft, and be appeals.
    Affirmed.
    W. W. Nelms, of Dallas, for appellant. C. E. Lane, Asst. Atty. Cen., for the State.

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

   HARPER, J.

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

All the witnesses agree that appellant, J. B. Conine, and George McCully met in a saloon in Dallas, and then took an automobile drive in an automobile belonging to Conine, going to the “Pass Time Club”; but from this time on is where the conflict occurs. Conine says that when they got to the Pass ■ Time Club one of them said, “You are not a member of the club and cannot go in; give us a little change, and we will go in and get the beer;” that he took out his pocketbook to do so, and, the bills being on top, he took them out to get the change, and as he did so appellant grabbed the bills and ran; that there were ten $10 bills, amounting to $100, that appellant took from him on that occasion.

Appellant admits riding to the Pass Time Club, but says when he got there he got out and got on the street car and went to his home; that Conine had not taken out any money when he left, and he saw and took none of his money.

McCully says as soon as he got out he went in the Pass Time Club, and did not see any one get Conine’s money, but in a few seconds he was told about Conine losing his money.

The state, to show flight, introduced evidence that the police were informed and made search for appellant, but did not succeed in locating him for some months. The theft is alleged to have taken place on April 16th, and appellant admits leaving Dallas, but says he did not do so until 28th of April, going first to Denison, then to Denver, in search of work, and there went to work for the Union ¡Pacific Railroad.

There are but two questions raised by the record, and they both call for a construction of the acts of the last Legislature. Appellant entered a plea requesting that, in the event he was convicted, his sentence be suspended. When this plea is entered by any one on trial for a felony, section 2 of the suspended sentence act (chapter 7, Acts 33d Leg. p. 8) provides that “the court shall permit testimony” to be introduced “as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence,” providing therein that, if he has theretofore been convicted of a felony, the sentence shall not be suspended. Unless a person on trial enters this plea, his reputation cannot be put in issue by the state, unless he does so; but, when he elects to avail himself of the privilege of filing this plea, then he puts his reputation in issue, and any legitimate testimony bearing on that issue becomes admissible, and, by filing this plea in this case, he opened the door for testimony bearing on his reputation. In addition to this, he introduced a number of witnesses who testified that his reputation for truth and veracity, for honesty, and as a peaceable, law-abiding citizen was good. On cross-examination of these witnesses some of them admitted they had heard he was charged with robbing a box car. The state also introduced a number of witnesses who testified appellant’s reputation as a peaceable, law-abiding citizen was bad. When appellant took the stand and testified, among other things, he said that, while he had been charged with robbing the box car, he had not been indicted for that offense, and had never been convicted of any felony. The state on cross-examination asked him if he had not been arrested as many as a dozen times, and he answered no, but admitted that he had been arrested three or four times, and had been in the city jail two or three times. Appellant strenuously objected to the testimony that he had been arrested three or four times, and had been in jail two or three times, saying that on these occasions he was charged with misdemeanors not involving moral turpitude. As to the witnesses who testified to appellant’s general reputation as a peace able, law-abiding citizen, it was certainly per missible on cross-examinaton to ask them if they had not heard of appellant being charged with violations of the law, for it has always been held that a witness testifying to general good character may be so cross-examined to test, the soundness of his opinion, to elicit data upon which it was founded, to determine whether or not such opinion is well founded. Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400; Bearden v. State, 44 Tex. Cr. R. 683, 73 S. W. 17. In Holloway v. State, 46 Tex. Cr. R. 307, 77 S. W. 14 this court held:

“Of course it was not competent for the state originally to put appellant’s reputation in issue ; but, he having done so, it was proper on cross-examination of his witnesses to prove by them particular acts of misconduct, or, where the proof was of general reputation on the part of appellant, that the witnesses had heard of particular acts of misconduct,” citing Rice, Cr. Ev. p. 603.

And this is not only the rule in this state,but it is so held in State v. Merriman, 34 S. C. 16, 12 S. E. 619; Ingram v. State, 67 Ala. 67; People v. Gordon, 103 Cal. 568, 37 Pac. 634; State v. Jerome, 33 Conn. 265; Cook v. State, 46 Fla. 20, 35 South. 665; Ozburn v. State, 87 Ga. 173, 13 S. E. 247; Smith v. State, 10 Ind. 106; State v. Arnold, 12 Iowa, 479; Newton v. Com. (Ky.) 102 S. W. 264; State v. Donelon, 45 La. Ann. 744, 12 South. 922; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A. (N. S.) 535; McCormick v. State, 66 Neb. 337, 92 N. W. 606; State v. Campbell, 20 Nev. 122, 17 Pac. 620; State v. Knapp, 45 N. H. 148; State v. Perkins, 66 N. C. 126; People v. McKane, 80 Hun, 322, 30 N. Y. Supp. 95; State v. Ogden, 39 Or. 195, 65 Pac. 449; People v. Hite, 8 Utah, 461, 33 Pac. 254.

Appellant presents these cases wherein appellant does not put his reputation in issue, and only takes the stand as a witness, and under such state of facts it has been correctly held that proof can only be made of offenses involving moral turpitude, or of the grade of felony, to affect his credit. But when he. puts his reputation in issue as a peaceable and law-abiding citizen, and he does this in this case specifically, and in addition thereto does so by filing a plea asking a suspension of sentence, then evidence which tends to show that he is not a peaceable, law-abiding citizen may be adduced on cross-examination of his witnesses, and may be adduced even though such acts are not felonies, or do not involve moral turpitude. And when he files a plea asking a suspension of sentence, this in and of itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation is admissible in evidence. The fact that one has theretofore been convicted of a felony bars him from availing himself of the plea, but the fact that he has not before that time been convicted of a felony does not in and of itself entitle one to a suspension of sentence; it authorizes him to enter the plea, and if his reputation theretofore is shown to be such that the best interests and welfare of the state will not suffer by suspending the sentence, and is such that hope can be entertained of his reformation by extending this clemency, it may be done. But if his reputation, the life he has lived, is such there is but little or no hope of reformation, without his being compelled to undergo punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended. This, as we understand it, is the object and purpose of the law, and when one elects to file this plea asking for clemency, if found guilty, the law puts in issue his past reputation, and evidence of the character of life he has lived in the past is admissible to enable the jury to determine whether or not the clemency should be extended; and the first bill presents no error.

However, while all the evidence objected to was admissible to enable the jury to determine whether or not they would suspend punishment for the offense committed in case they found him guilty during good behavior, it was not admissible for the purpose of affecting the credit of the defendant as a witness, for the offenses for which he had theretofore been arrested did not involve moral turpitude, and were not of the grade •of a felony, except in one instance (that in which he was charged with robbing a railroad car), and in that case, after investigation, no indictment was returned, consequently this evidence adduced did not go to his credit as a witness (Wright v. State, 63 Tex. Cr. R. 434, 140 S. W. 1105), but was admissible as bearing on his reputation as a peaceable and law-abiding citizen on his plea of suspension of sentence. The charge of the court instructed the jury:

“You are further instructed that there has been admitted before the jury evidence in regard to defendant having been arrested and charged with other offenses besides the one set out in the indictment in this case. You are instructed that defendant is not on trial for any other offense, and cannot be convicted therefor. Such evidence was admitted before you for the purpose of enabling you to pass upon the credibility of the defendant as a witness in his own behalf, and to aid you in deciding what weight you will give his testimony as a witness in this case, and, if you consider such testimony at all, it will only be for the purpose for which it was so admitted by the court.”

The first part of this charge wherein, he instructed the jury that such testimony could not be considered in passing on the guilt or innocence of the defendant in the case then on trial was a correct exposition of the law; but the charge was erroneous in instructing the jury that such testimony might be considered in passing on the credibility of the defendant as a witness, the offenses not involving moral turpitude, and not being of the grade of felony. Instead, the jury should have been instructed that, in case they found appellant guilty, it could only be considered in passing on whether or not they would recommend suspension of the sentence.

The record discloses that the charge of the court was submitted to the appellant and his counsel before being read to the jury, and no objection was made thereto as given in any respect; but after verdict appellant does except to this paragraph of the charge, and this necessarily involves a construction of article 743 of the Code of Criminal Procedure, as amended by the Acts of the Thirty-Third Legislature (chapter 138, p. 278, Sess. Acts). It was provided in that act that the charge before being read to the jury should be submitted to counsel, and they must at that time present in writing any objections to the charge, distinctly specifying each ground of objection, and, if no objection is made at that time, the case shall not be reversed because of errors in the charge, and, if such objections are made, we shall not reverse, unless such errors were calculated to injure the rights of defendant, or unless it appears he has not had a fair and impartial trial. Prior to the enactment of that law, errors in the charge could be pointed out after verdict in the motion for new trial, and this statute was passed to remedy that matter, and require attorneys to point out the errors in the charge before it was submitted to the jury, instead of after verdict. Under the law as it was formerly written, this court in an unbroken line of decisions held that, unless the error in the charge was complained of in the motion for new trial, we could not consider it, unless fundamental error was presented. Pena v. State, 38 Tex. Cr. R. 333, 42 S. W. 991; Sue v. State, 62 Tex. Cr. R. 122, 105 S. W. 804; Reyes v. State, 55 Tex. Cr. R. 422, 117 S. W. 152; Manning v. State, 46 Tex. Cr. R. 326, 3 Ann. Cas. 867, 81 S. W. 957; Bailey v. State, 45 S. W. 708; Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Magee v. State, 43 S. W. 512; Spears v. State, 41 Tex. Cr. R. 527, 56 S. W. 347.

Many other cases could be cited showing that article 743 (old Code, 723) had received a settled construction prior to its amendment 1913, 'and that is, unless the error in the charge was complained of in-the motion for new trial, and if it was presented for the first time in this court, we would not be authorized to reverse the case. With this construction before them, the Legislature deliberately, in amending the article, struck out the words “or in motion for new trial,” and required that all errors in the charge be objected to at the time of the trial, and before the charge is read to the jury, requiring that the court submit his charge to counsel for that purpose. And the question is: Are we authorized to ignore this plain statutory provision of our law, because the court improperly instructed the jury they could consider the testimony for the purpose of affecting the credit of the defendant as a witness, when it was not admissible for that purpose, but for a wholly different purpose? We do not think so. If the law is wrong in thus providing, it is not for us to construe away; but application should be made to the body which enacted the law. Because the error in the charge is not in any manner complained of until after verdict, we cannot consider it under the present law any more than the court under the former law could if it had not been complained of in the motion for new trial; and it necessarily follows that the judgment must be affirmed, and it is accordingly so ordered.


author: PRENDERGAST, P. J.

text:
    BISHOP v. STATE.
    (No. 3141.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 10, 1914.)
    1. Animals (§ 50) — Stock Laws — 'Validity.
    Under Const, art. 16, § 23, empowering the Legislature to pass laws for the regulation of live stock in the stock-raising portion of the state, and to exempt from such laws other portions of the state, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., a town incorporated under the general incorporation act could be included in a district for which a stock law election was had.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.*]
    2. Animals (§ 50) —Running ax Large — Stoce: Laws.
    Under Const, art. 16, § 23, empowering the Legislature to pass laws regulating live stock in the stock-raising portion of the state, and to exempt other portions, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., and the statutes passed thereunder, one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    3. Couets (§ 89) — PREVIOUS Decisions as Peecedent.
    Since the Legislature has given the civil courts exclusive jurisdiction to determine the validity of stock law elections, and taken such question from the criminal courts, the decisions of the civil courts as to such questions are binding upon the criminal courts in preference to their own previous decisions.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. § j 311, 312; Dec. Dig. § 89.]
    4. Animals (§ 50) — Running at Large — Stock Laws — Election—Petition.
    Where a petition to the commissioners’ court for a stock law election was permitted to be amended so as to include three other surveys and change the number of the district, the amendments did not render the petition a new one, so that the court could not act thereon at that term.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    5. Animals (§ 50)— Running at Large — Stock Laws — Elections — Record of Returns.
    Under Rev. St. 1911, art. 2276, requiring the commissioners’ court to procure and keep in the county court clerk’s office suitable books to record the proceedings of the court, the fact that the tabulated returns of a stock law election were recorded in a book in which the result of all elections were recorded, and not in the minutes of the court, did not invalidate the election, since the minutes of the court need not necessarily be kept in one book.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    6. Animals (§ 50) — Stock Laws — Elections —Failure to Record Returns.
    Though the clerk of the commissioners’ court should fail to record the tabulated returns of a stock law election in the proper book, it would not invalidate the whole election, where every other essential was complied with, and there was no doubt that the election was carried.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    Appeal from Colorado County Court; J. J. Mansfield, Judge.
    Mose Bishop was convicted for permitting his cow to run at large in violation of the stock law, and he appeals.
    Affirmed.
    J. C. Kindred and Grobe & Miller, all of Columbus, for appellant. A. A. Gregory, Co. Atty., and Townsend, Quin & Townsend, all of Columbus, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Under article 1249, P. C., appellant was prosecuted and convicted for knowingly permitting his cow to run at large after the stock law had been adopted prohibiting this. He waived a jury, and was tried before the court on an agreed statement of facts.

Shortly prior to the August term, 1913, of the commissioners’ court of Colorado county, 58 qualified voters in a certain territory of said county petitioned said court to order an election in that certain designated portion of said county specifically described by metes and bounds to determine whether or not stock — horses, mules, jacks, jennets, and cattle — should be permitted to run at large in said designated territory. This territory, except three surveys, had theretofore been designated by said court as election district No. 6 of said county. The petition at first so called it, in addition to the specific boundaries composing it at that time. When said court convened at said August term it added three surveys — one league and two quite small surveys — to that election district, and changed the number thereof from 6 to 8. It then permitted the petitioners to amend their said petition so as to include said three surveys and change the number of the district from 6 to 8 therein, which they did; the court and all the petitioners consenting. The court then granted the petition, ordered the election, made all of the necessary orders, had all the proper notices issued and published and the election held strictly in accordance with the statute. Said election district, as No. 6, theretofore had embraced the city of Weimar. Weimar, long before then, had been incorporated under the General Incorporation Act, authorizing towns of 1,000 inhabitants or over to incorporate under articles 762 et seq. of our Revised Civil Statutes. As such corporation it had just such power and authority over the streets, alleys, and public grounds of the city and to regulate and prohibit stock running at large as were given by said statutes to such incorporated towns. It had passed no ordinances, and had none regulating or prohibiting stock running at large. Some considerable time before said election two respective subdivisions of said district 8 had had stock law elections, which had carried, putting said stock law in force in said two subdivisions, respectively. These two subdivisions together embraced perhaps more than half of said district 8. Neither of them embraced Weimar, or any part of it. The other portion thereof, including Weimar, had never had any stock law election embracing that territory, or any part of it. Said district 8 embraced the whole of each of said two subdivisions and said additional territory. Before this prosecution none had ever been had in either of said two subdivisions where the stoek law had been carried. Said law in neither of said subdivisions had been observed or enforced. Thirty-two of said petitioners were resident freeholders of said two subdivisions. The other 26 were resident freeholders in that part of said district 8 which theretofore had had no election, nor stock law in force. The returns of said election in said district 8 were properly opened, tabulated, and counted by the county judge in the presence of the persons the statute requires, his count and tabulation distinctly showing that 139 votes were cast for the law and 93 against, and 5 mutilated ballots. The said certificate and order of the county judge showing all this, was duly recorded in volume 3 of the Records of Elections in the county clerk’s office of said county. In addition, the said petition for the election, the order of the court granting it and ordering the election, the order of the county judge ordering the election and causing the proper publication, reciting everything the statute requires, the further proclamation of the county judge, fully reciting all the proceedings authorizing and requiring said election, and declaring said result, and that after the requisite time it would be unlawful to permit, etc., such stock to run at large in said territory, were all duly recorded. Appellant knowingly permitted his cow to run at large within the corporate limits of Wei-mar after said stock law had been voted and put in effect in said district 8 in 1913.

Under this state of facts appellant contested the validity of said election and claims the stock law is not in force in said district 8 on four grounds. He contends, first, that Weimar cbuld not be included in the territory for such election because it was incorporated; second, that because stock law elections had been held and the law put in force in said two subdivisions of said district 8, they could not be combined with another, wherein no election had been Held and the stock law not in force therein, so as to embrace the whole territory described and designated as said district 8; third, that because said original petition was amended in the particulars shown after the term of said court had convened, it thereby became a new or original petition, and, having again been filed, after said court convened, the court had no power at that term to order said election; and, fourth, because the tabulated election returns were not recorded in the minutes of said court, but recorded only in the records of elections of said county court.

Our Constitution (section 22, art. 16) is:

“The Legislature shall have the power to pass such fence laws, applicable to any subdivision of the state or counties, as may be needed to-meet the wants of the people.”

Again, section 23, art. 16, is:

“The Legislature may pass laws for the regulation of live stock and the protection of stock raisers in the stock-raising portion of the state, and exempt from the operation of such laws other portions, sections or counties; * * * provided, that any local law thus passed shall, be submitted to the freeholders of the section, to be affected thereby, and approved by them before it shall go into effect.”

Under these constitutional provisions the Legislature has from time to time passed stock laws and authorized elections to be held in counties and subdivisions thereof. It first passed a law authorizing such elections to be held to prohibit the small live stock, hogs, sheep and goats, from running at large. For the first time by the act of 1899, p. 220, it provided for like elections to be lield to prohibit the large live stock, horses, mules, jacks, jennets and cattle, from running at large. These various acts have been construed both by this and our civil courts from time to time. We have again considered and reviewed the decisions, both civil and of this court, on the points raised by appellant, as well as the authorities cited in appellant’s brief herein.

This court in Neuvar v. State, 163 S. W. 58, expressly decided appellant’s first ground against him. We have no doubt of the correctness of that decision, and that Weimar could be, as it was, embraced in said district 8, and the election was not invalid because thereof.

We also think it clear, under the statute and the decisions of this court and the Supreme Court, that the two subdivisions of said district 8, in which previous stock law elections had been held and carried, could be embraced therein together with the remaining portion of said district 8 in which no stock law election had been held. Ex parte Thompkins, 47 Tex. Cr. R. 358, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63.

Prior to the decision of the Thompkins Case, supra, this court had held in Ex parte Heyman, 45 Tex. Cr. R. 532, 78 S. W. 349, and other cases since then following that decision, that under section 20, art. 16, of our Constitution, requiring the Legislature to pass laws authorizing certain subdivisions of a county to hold elections to determine whether or not the sale of intoxicating liquors should be prohibited therein, one or more such subdivisions of a county wherein such election had been held and carried could not be combined with any other such subdivision, so that a valid election could be held in such combined divisions. But this court, through Judge Henderson, in Thomp-kins Case, supra, pointed out the distinction and difference between that section of the Constitution and those regulating stock law elections, and in effect held that the doctrine announced in the Heyman Case was inapplicable to stock law districts, and the effect of the decision and the principle announced in the Thompkins Case is that the whole of another or other districts wherein the stock law election had been carried could be combined with another, and with territory in which no election had been held, making a new district, and that an election held in such new district was valid. We have no' doubt, under the stock law constitutional provisions above quoted and the statutes passed thereunder, that one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district, as was done in this case, and that such election embracing such territory is valid and legal.

Besides this, since the decision in the Heyman Case, supra, and all those following it were rendered, the Legislature of this state has taken the decision of all such questions from this court and given the civil courts exclusive jurisdiction to determine the validity of any such election, under the liquor prohibition constitutional provision, by the act of 1907, passed at the first special session of the Legislature (page 447). Our Supreme Court, in Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635, and other cases, and the Court of Civil Appeals at Galveston, in the recent decision of Scurlock v. Fairchilds, 159 S. W. 1001, have held that such districts can be combined and made a new district, and that such an election held therein would not be invalid because thereof. The principles announced in those cases are exactly applicable to that question in this case, and we would follow the civil courts on such questions. The reasoning of the two decisions, just above cited, in our opinion, is unanswerable and conclusive of the question. Under the law as it now is, that question under the liquor prohibition constitutional provision cannot again come before this court, so that, the effect of the said decision in the Heyman Case, supra, and others following it, is in effect done away with.

The petition for the election in this case having been filed before the August term, 1913, of the .commissioners’ court convened, it was properly acted upon and granted and the election ordered at that term of court. The amendments thereto, made as shown above, did not render the petition a new one, so that the court could not act thereon at that term.

The statute (R. S. art. 2276) requires the commissioners’ court to cause to be procured and kept in the county clerk’s office suitable books in which shall be recorded the proceedings of the court. One of these books so procured and kept in the office seems to have been a book in which the record of the result of all elections was entered, and, the tabulated returns of this election having been recorded therein, substantially complied with the law. The minutes of the commissioners’ court need not necessarily be kept in any one book. Various books for the record of the various proceedings of the court may be kept. We know of .no law that requires the proceedings of the commissioners’ court to be recorded in any one book. Even if the tabulated returns had been omitted to be entered in the proper book by the clerk, that certainly could not be held to invalidate the whole election and the validity of the law, when every other essential had been fully and completely complied with, and there could be no possible doubt from the orders and minutes of the court that the election was carried, as shown by the tabulated returns of the election. Even mere irreguiarities in conducting the stock law election would not render it void. Hannah v. Shepherd (Civ. App.) 25 S. W. 137.

In our opinion the stock law in said election district 8 in Colorado county was in every way valid and legal against any and all of appellant’s contentions. The judgment is therefore affirmed.