author: WILLSON, O. J.

text:
    JENNINGS et al. v. POLLARD.
    (No. 2058.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1919.)
    1. Judgment <©=>255 — Conformity to Proof— Admission of Credits — Effect.
    Where plaintiff, suing for a balance due of $298.46, admitted in testifying that defendants were entitled to credits aggregating $130.35, he was not entitled to recover any sum in excess of $168.11.
    2. Appeal and Error <©=>1177(1) — Disposition — Action for Balance Due — Reversal for New Trial.
    Where' plaintiff, suing for balance due of $298.46, by his own admissions in testifying is not entitled to recover over $168.11, and it also appears that very probably he is not entitled to recover in excess of $22.20, instead of reforming judgment for plaintiff for $200, the case will be reversed for new trial.
    3. Evidence <©=>586(2) — Recovert on Case Made by Defendants.
    Plaintiff suing for balance due was not entitled to recover on testimony disproving defendants’ case as made by their pleadings, but must have recovered on testimony proving case made on his own pleadings.
    Appeal from Red River County Court; George Morrison, Judge.
    Action by S. R. Pollard against Thos. P. Jennings and others. From a judgment for plaintiff, defendants appeal.
    Reversed, and cause remanded for new trial.
    In his petition appellee (plaintiff below) alleged: That at various times he specified he sold appellants railroad ties and wood for which they promised to pay him sums aggregating $1,349.69. That of said aggregate sum appellants had paid him $1,122.47, as follows: In money, $370; in merchandise $712.47; and by canceling a promissory note they held against him, $40. That to the difference in his favor of $227.22 between the amount of his account against appellants and the amount of the credits they were entitled to should he added $71.24, which, he alleged, was the amount of a discount appellants agreed to allow him on the prices charged for the merchandise they sold him— making a total of $298.46, which, he alleged, he was entitled to recover of appellants.
    Appellants answered, denying that they were indebted to appellee in any sum, and alleging that on a correct statement of the account between them appellee, instead, was indebted to them in the sum of $2.55, and also in the amount, less a credit of 40 cents it was entitled to, of the promissory note mentioned in appellee’s petition. They attached to their answer an itemized statement of the account between them and ap-pellee showing a balance in their favor of said sum of $2.55, for which, as well as for the amount of the note referred to, they asked judgment.
    In a supplemental petition,. appellee denied liability for items aggregating $130.35 charged against him in appellants’ account, but testifying as a witness admitted that the items were just charges against him, and that they were not included in the account he sued upon. In his said supplemental petition, appellee also denied liability for other items, aggregating $145.91, charged against him in appellants’ said account. Testifying as a witness, appellant Tom Jennings affirmed the correctness of those items, and, it seems, produced and exhibited to the court orders in writing signed by appellee for each and every one of them. After said Jennings so testified, appellee testified further as a witness in his own behalf and did not controvert the testimony of Jennings in the respect stated, nor did he deny giving the orders produced by Jennings. The appeal is from a judgment in appellee’s favor against appellants for $200.
    Moore & Hardison, of Paris, for appellants.
    R. II. Jones, of De Kalb, and Mahaffey, Keeney & Dalby, of Texarkana, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

When the case made by appel-lee’s pleadings and the testimony is kept in ¡mind, we think it is clear that the judgment is wrong. The balance appellee claimed to be due him on the account he sued on was $29S.46. Testifying as a witness, he admitted, as appears from the statement above, that appellants were entitled to credits aggregating $130.35 which he had not allowed in stating said account. It is plain, therefore, that appellee was not entitled to recover a sum in excess of $168.11 — the difference between the sum he sued for and the amount of credits he acknowledged appellants were entitled to but had not received in his account against them. It may be that the judgment should be so reformed as to adjudge a recovery in appellee’s favor for said sum of $168.11, and that as so reformed it should be affirmed; but we have concluded not to pursue that course, because of the fact that it appears very probable from the record that appellee is not entitled to recover of appel-ants a sum in excess of $22.20. The testimony of Jennings, referred to in the statement above, indicates this we think. If the orders he exhibited (but which were not offered and admitted in evidence, it seems) were in fact given by appellee, as Jennings testified and appellee did not deny they were, the account appellee sued upon should have been further credited with the amount of said orders, to wit, the sum of $145.91, which would have left a balance of only $22.20 in appellee’s favor.

Appellee asserts that there was testimony which would have supported a finding that the balance on the account appellants sued on, instead of being in their favor for $2.55, was in his favor for more than $200. Therefore, he argues, the .judgment in his favor was not unwarranted. But we think he was not entitled to recover on testimony disproving the case made by appellants’ pleadings, but must have recovered on testimony proving the case made by his own pleadings.

The judgment is reversed, and the cause is remanded for a new trial.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    WINN v. STATE.
    (No. 5252.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    Criminal Law <&wkey;780(2) — Accomplice Testimony— Evidence Requiring Instruction.
    The testimony to connect defendant with the burglary, other than that of the store owner that it was his coat which he saw on defendant, being that of a person who, though testifying that defendant unsuccessfully tried to get him to join in the burglary, said that he gave the coat to defendant, a charge on accomplice testimony should have been given.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    A. J. Winn was convicted of burglary, and appeals.
    Reversed and remanded.
    See, also, 198 S. W. 965.
    Lee R. Stroud, of Kaufman, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The case is one of circumstantial evidence. This is the second appeal. It was previously reversed because the court failed and refused to charge the law applicable to a ease of circumstantial evidence. This time the charge was given.

A lengthy bill of exceptions setting out practically all the facts in the case was reserved to the court’s failure and refusal to charge the law of accomplice testimony. The matter is properly presented for revision. The state’s case was made by two witnesses, the alleged owner of the burglarized house and Godfrey. The owner of the house was named Gillis. He testified he was doing a tailoring and dyeing business; that he closed his shop in the evening, went home, and the next morning found the front door about three or four inches ajar, and that some one had entered his shop; that he missed a lot of clothing from the establishment; that he had never seen any of the clothing since, unless it was a blue serge coat which he undertakes to describe as being found on defendant in the city of Dallas some time after the alleged burglary. This burglary occurred in Eorney, Kaufman county. In connection with this the witness. Gillis testified he was standing on the corner of Elm and Central avenue near the old Unibn Depot in Dallas, and he saw defendant come in from Eorney on the train; that in leaving the train he passed along near where he was standing going to Elm street, and that he whistled at defendant, who turned and looked toward him, and ran across the street and passed out of his sight. He went across the street to a saloon and called the police, and waited not exceeding ten minutes at the outside. Defendant came back and entered the saloon where he was. He says further:

“AVhen I saw him pass the corner of Elm and Central where I was watching, as I stated, and where I whistled for him and he looked around towards me he had on a blue serge coat that I recognized as the missing coat, and that caused me to whistle at him, and when he had run across Elm as I said and out of sight and returned above five or ten minutes later to where I was in the saloon, as just stated, he had changed the blue serge coat and had on a sweater, and then I had him arrested.”

He also bad Jesse Poindexter arrested at the same time, who had come to Dallas and was seen with defendant. Poindexter was later discharged from custody. Further testifying with reference to the identity of the coat he says:

“I do not know what become of that coat; I have never gotten it. This burglary occurred about December 10, 1916, in Kaufman county, Tex., and the blue serge coat which I recognized on defendant in Dallas on the day he was arrested was missed and taken out of my place of business on the night of the burglary. It looked like my coat; I could he mistaken.”

Witness was some distance from the defendant, who was going away from him, as he further testified, and he identified the coat only by seeing it on defendant, who had his back towards him. With the exception of this article this witness did not undertake to identify any goods in possession of the defendant, and seems to have known nothing further about who entered his house than connected with the blue serge coat.

By the witness Godfrey the state undertook to connect defendant with the burglary of the house. In regard to the 'blue serge coat this witness testified that it was his coat, and he let defendant have it to wear to Dallas; that it was his property, and mentioned the circumstances under which he let defendant have it Further testifying he says:

“Two or three days before the burglary of Gillis’ shop, and on or about December 8, 1916, I had a conversation with defendant. He was at my father’s shoeshop in Forney, and asked me if I wanted to make some money. I asked him how. He said, ‘We will get some clothes.’ I asked him where. He said, ‘Here in Forney.’ I said, ‘How will we get them?’ He said, ‘Steal them.’ I told him, ‘No, I didn’t want to help him.’ A day or two before this conversation I had another conversation with him, a short one; he come to me with a pair of pants and asked me to let him put the pants there in my shoeshop; the pants had been stolen a day or two before then. I told him I could not do that; they were liable to come there and search the house and find the pants and swear that I was the one that stole them. They were brown pants; that was before the burglary two or three days.”

It may be here stated that Gillis said-he lost a pair of brown pants. This witness, further testifying, says that:

“After the burglary defendant came to me in Dallas and asked me did I want to help him sell the clothes. I asked, ‘Where are they at?’ He says, ‘Over here.’ I said, ‘Where did you get them?’ He says, ‘I got them in Forney; don’t you know whose clothes I was talking about?’ I says, ‘Yes.’ He says, Well they are here; don’t you want to help me sell them?’ I said, ‘No, I had rather help steal them than to help sell them.’ He did not say, after we were in Dallas, where he got them, but told me in Forney he was going to get them at Dave Gillis’ shop. That is where he said they were located. He told me he got them at the same place he got the brown pants. The conversation about the pants occurred two or three days before the burglary when he came to my shop with the pants. Then after that was when he came to me and asked me if I wanted to make some money; it was at my shoeshop, and I told him I would not do that. And after the burglary and before the conversation in Dallas he had one other conversation with me in For-ney on Sunday; he asked me did I want to help him make way with the clothes, and said he had done got them; that he had got them at the same place he got the pants. The conversation in Dallas was the last one, and was the day he was arrested.”

On cross-examination lie says:

“I saw him [appellant] in Forney about two weeks before the burglary, and he spoke of going to Dallas; his coat was light, and it was cold. I loaned him a coat which he wore to Dallas before the burglary; it was a blue serge coat; he wore it to Dallas about two weeks before the burglary, and I never got the blue serge coat any more. I never looked it up and don’t know what became of it. The reason I did not testify about the blue serge coat on a former trial of this case was that I was not asked about that.”

The first witness, Gillis, also testified that appellant stated to him in Dallas when he had him arrested that he had sold the goods at a pawnshop in the west end of Dallas. So far as this record is concerned, there was no search made for clothes said to have been sold at the pawnshop, and there was no identification of them, or any further fact in connection with the sale at the pawnshop, except as above stated. Outside of the statement of the defendant to the witness Godfrey that he had got them at the same place that he got the brown pants, there is nothing to indicate, except his statement, that they were talking about Gillis’ shop. i\obody ever saw appellant in possession of the goods, unless it was this witness Godfrey. Defendant and his father proved a clear alibi for him on the question of breaking, and if the facts are true he did not break into the shop of Gillis, and in fact they show, as does Gillis, their residence, or part of the house they occupied, was bart of the same house occupied by Gil-lis, and that there were doors between the part of the house occupied by defendant’s father, with whom defendant lived, and Gillis’ shop, Gillis having rented that part of the house from defendant’s father, and that people frequently went in through that door, and it was kept open a great deal of the time. Defendant denies the whole transaction, and states he did not enter the house, or take any of the goods, and denies the conversation with Godfrey with reference to the clothing. If his testimony is to be credited, he had nothing to do with the transaction, to which he also testified with reference to the blue serge coat; that he had it on, at the time indicated by Gillis, and had it on when arrested, and was carried to jail with the coat on, and it was rather large for him, and he traded it while in jail to another party and secured the sweater there. None of the officers or parties who had control of him were called to testify with reference to this matter. These matters are mentioned because they bear upon the question as to whether or not a charge on accomplice testimony should have been given. We are of opinion the charge should have been given. The identification of the coat by Gillis was very indefinite, but if it was his coat that was taken, then the state proved beyond any question that the witness Godfrey let defendant have a blue serge coat. The defendant testified he got the blue serge coat from Godfrey; that he knew nothing about the blue serge coat except the fact that Godfrey let him have it to wear to Dallas, and the circumstances under which he did get it. It was cold weather, and tie coat at the time appellant was wearing was light weight, and Godfrey let him have a blue serge coat because it was heavy and he wanted to go to Dallas to see an aunt. This is shown by Godfrey and defendant. With reference to the conversation between Godfrey and appellant in Dallas about the clothing and selling, etc., there is very serious doubt as to whether it occurred. The state’s witness Gillis testified appellant got off the train and started across to the corner of Elm and Central avenue when he saw him. If that was true, then the conversation between God-frey and appellant could not have occurred with reference to asking him to assist him (appellant) in selling the goods. If the blue serge coat was the coat taken, then appellant did not ta!ke it under the state’s testimony, and it would show that Godfrey took the coat; if it was Godfrey’s coat and not taken from Gillis’ shop, then appellant was not connected with the identification of any of the goods taken, except 'by Godfrey, which has already been .stated. Under these circumstances we are of opinion the court should have given a charge on accomplice testimony. Whether the jury believed those things is no) the question. The issue was presented by the testimony, and Godfrey is so mixed up in his testimony and his actions with this matter that the jury should have been required to pass upon his testimony as viewed in the light of his being an accomplice. If he was •an accomplice, it would be necessary to corroborate him with reference to appellant’s connection with the goods. It is a doubtful issue as to whether there was a burglary at all or not. If appellant went into an open door from where he was sleeping in his'father’s house into the store and went out the front way, it would not be burglary. If he went in that way and got the goods he might have been charged with theft, but not burglary. Gillis stated the front door was open a few inches', but that is all he knew about the matter, and the fact that he lost the goods.

We are of opinion that the charge on accomplice testimony under the facts stated should have been given, and" because it was not this judgment will be reversed, and -the cause remanded.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    MILLER v. STATE.
    (No. 5191.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    Criminal Law <&wkey;939(4) — New Trial — New Evidence — Failure, to Ask Continuance.
    The evidence of defendant’s appropriation of his employer’s car to his own use being unsatisfactory, he should be granted a new trial for the testimony of the person to whom he claimed to have rented the ear, though he did not move for a continuance to procure his testimony, he explaining this by the fact that he did not know his name or whereabouts, and the testimony being consistent with prior statements of defendant and testimony at the trial.
    Appeal from Criminal District Court, ¡Dal- ^ las County; Robert B. Seay, Judge.
    Fred Miller was convicted of embezzlement, denied a new trial, and appeals.
    Reversed and remanded.
    W. W. Nelms, of Dallas, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of embezzlement, and his punishment assessed at confinement for 4½ years in the penitentiary.

• Appellant was operating an automobile as a jitney in the city of Dallas under a contract with Walker, owner of the car, which contract contemplated - that the appellant would drive the car for hire, receive compensation from the passengers, retain a part of the money thus collected as compensation to himself, and account for the remainder to his employer. There is testimony that the agreement contemplated that he would report to his employer every hour, and that he would not let the car out to others, but that he alone would drive it and remain in possession of it until it was delivered to the employer in accord with the established custom. There is evidence that on the occasion on which the prosecution is based that the appellant, in disregard of the alleged instruction of his employer not to suffer others to have possession of his car, did rent the car to two other persons, agreeing with them upon the price, and instructing them to use it for one hour and return it to the appellant at a certain point designated in the city of Dallas; that after so delivering the car to the persons mentioned appellant, while walking on the street, met his employer, who demanded knowledge as to the whereabouts of the car, and was informed by appellant that it had been stolen. His employer insisted that appellant should accompany him to the City Hall which he did and there, in conversation with the officers who talked to him privately, told them that he had rented the car to a couple of men, but that he did not want his employer to know he had rented it; that if the officers would accompany him he would find the car and deliver it to them. This being acquiesced in, the officers and appellant went to a point on one of the streets of Dallas, found the car, and it was delivered to Walker.

The person who rented the car from appellant was not present and did not testify at the trial., There was testimony, however, by witnesses who were present at the time the appellant made the contract to rent out the car and delivered the possession of it to those to whom he rented it.

On motion for new trial the appellant produced the affidavit of one of the individuals to whom he had rented the car and who had used and returned it, accounting for his absence at the trial and his failure to apply for a continuance thereof by the fact that he was unable to give his name or his whereabouts, though he I^new his description, and knew him by sight. We think the trial court should have granted the motion for new trial. If appellant had appropriated the car to his own use, his statement to his employer that it had been stolen by some one else would have been a potent circumstance tending to prove his fraudulent intent. Explained, as the record shows it, by the appellant’s statement to the officers that the reason he had told his employer the car was stolen was to relieve himself of censure for disobedience of orders not to hire the car to others, in connection with the undisputed evidence of witnesses apparently disinterested to the effect that they were present and heard the contract to hire the car, and saw appellant deliver it, and heard him di'reet that it be returned within an hour, coupled with the fact that the car was pointed out to the officers at the place designated at about the time agreed upon, we think the evidence of appropriation of the car to his own use by the appellant is not of a satisfactory character. This view is emphasized by the affidavit mentioned, adduced upon the motion for new trial. It may be stated of this affidavit that there is nothing in the record to throw suspicion upon its truth, though the fact that appellant failed to seek a continuance in order to procure the testimony of this witness would not bring it strictly within the rules applicable to newly discovered evidence. It is consistent, however, with the appellant’s statement to the officers and with the evidence of the witnesses who testified to the contract of hire, and considering the manner in which the case appears to have been tried, we think it should have been considered in connection with his motion for new trial. Dunham v. State, 3 Tex. App. 469; Bullock v. State, 12 Tex. App: 50, and cases cited in Branch’s Ann. Texas P. 0. p. 125.

Reversed and remanded.
      <§j=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FUNK v. STATE.
    (No. 5001.)
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1919.)
    1. War &wkey;>32 — Grimes Committed by Soldiers — Jurisdiction.
    Prior to passage of Act Cong. Aug. 29,1916, the jurisdiction of the military tribunals over offenses committed by soldiers of the United States army was not exclusive.
    2. War &wkey;>32 — Crimes Committed by Soldiers — Jurisdiction or State Courts.
    Under Act Cong. Aug. 29, 1916, § 3, art. 92 (U. S. Comp. St. § 2308a [92]), a soldier of the United States who murders a citizen of the state offends against both the military and the state laws, and may be tried in the state courts.
    3. War <&wkey;32 — Crimes Committed by Soldiers — Choice of Tribunal.
    Although under Act Cong. Aug. 29, 1916, military authorities have the prior right to try a soldier who murdered a citizen, the soldier who has committed the crime cannot object to being tried by a state court, where the military authorities have not asserted any right. .
    4. Removal of Causes <&wkey;19(l) — Crimes Committed by Soldiers.
    A soldier of the United States who murders a citizen of the state has no right to removal of a prosecution from a state court to a federal court under Act Cong. Aug. 29, 1916, § 3, art. 117 (U. S. Comp. St. § 2308a [117]), where it was not contended that the act was done under color of his office or status.
    5. Jury &wkey;>-116 — Quasiiing Venire — Grounds.
    In a homicide case, where a special venire of 50 men were regularly ordered for appearance, but only 35 were served with summons to appear, the fact that all the veniremen were not summoned did not require the court to quash the venire.
    6. Jury &wkey;>70(l) — Quashing Venire.
    Where a special venire of 50 men was ordered for appearance, but only 35 were served with summons, it was error for the court to dismiss the 35 veniremen and order a new ve-nire, when both the accused and the state were ready for trial, and no motion was made to quash.
    7. Criminal Law <&wkey;419, 420(8) — Hearsay.
    A Mexican who could not understand English, could not testify as to what was said by accused in English at a certain place, where he only knew what was said by information he received from others in his company.
    8. Criminal Law <&wkey;1169(12) — Harmless Error — Admission 'of Evidence.
    Admission of hearsay testimony as to a statement by accused, was harmless, where it coincided with the testimony of the accused upon the same subject.
    9. Criminal Law <&wkey;663 — Written Statements of Accomplice Before Trial — Right to Inspect.
    In a homicide case, where an alleged accomplice prior to trial had made written statements exculpating the accused, and consented to give statements inculpating him only on the day of the trial, the accused should have been accorded the privilege of inspecting the previous-statements.
    10. Criminal Law <&wkey;1168(2) — Harmless, Error — Reception of Evidence.
    Where an alleged accomplice made written statements before trial exculpating accused, and consented to give testimony inculpating him only on the day of trial, it was harmless error not to allow accused to inspect the previous written statements, where he had the benefit of them on cross-examination for the purpose of affecting the credibility of the testimony; the bill not disclosing that the statements were desired for any other purpose.
    11. Criminal Law <&wkey;424(l) — Declarations of Coconspirator Subsequent to Completion of Conspiracy.
    In a homicide case sheriff could testify that after completion of conspiracy to kill one of the conspirators, while under arrest, gave him information and directed him to a certain culvert, and he there obtained three pistols and cartridges identified at the trial by an accomplice as those used in the homicide, over objection that this was the act of a coconspirator subsequent to completion of conspiracy.
    12. Criminal Law <&wkey;351(10) — Disappearance of Witnesses.
    In a homicide case, it was error to permit the sheriff to testify that certain women desired as witnesses had disappeared, and to show in connection with his testimony subpcenas for them, together- with the sheriff’s return thereon stating that they could not be found, where there was nothing to show that accused had been instrumental in causing their disappearance.
    13. Ókiminal Law &wkey;>775(6), 792(3) — Instructions.
    An instruction on principals that: “If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground when the offense was actually committed or not” —was properly given, although defendant was attempting to prove an alibi.
    14. Criminal Law <&wkey;814(17) — Circumstantial Evidence — Instruction.
    Where an accomplice gave direct testimony that accused was a conspirator in a plan to murder, and that he participated in the homicide, the court was not required to charge on the law of circumstantial evidence.
    15. Criminal Law <&wkey;31 — “Alibi.”
    The defense of “alibi” arises when there is evidence that accused was at a point where he could not have been guilty of participating in the offense.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alibi.]
    16. Homicide <&wkey;29 — Conspiracy.
    If an accused did not enter into a conspiracy to kill, and did not take part in the homicide, or did not, knowing the unlawful purpose of his companions, aid or encourage them in the commission of the act, he would not have been guilty of the crime, though he was present, but if he was a party to such conspiracy, or, knowing the unlawful purpose of his companions, aided or encouraged them in their unlawful act, he might be guilty, though he was not at the scene of the killing.
    17. Criminal Law &wkey;>775(2) — Alibi — Instructions.
    Where the state claimed that there was a conspiracy to rent an automobile and kill the chauffeur, testimony of accused, that he accompanied the automobile party, and that the killing took place while he was at a house 100 yards away, the automobile having stopped, did not call for an instruction on the issue of alibi.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Delmar Funk was convicted of murder, and he appeals.
    Reversed and remanded.
    Wt W. Walling and Chambers & Watson, all of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is under, conviction for murder charged to have been committed in May, 1917, and at his trial during the same year he interposed a plea of jurisdiction of the district court of the state of Texas on the ground that he, being a soldier in the United States army at the time of the alleged offense and at the time of the trial, was not amenable to the state courts. He also filed a motion to transfer the cause to the United States District Court.

Appellant relies upon the provisions of chapter 418, Acts of the Sixty-Fourth Congress, First Special Session, U. S. Statutes at Large, vol. 39, p. 664. Prior to the passage of the act mentioned, the jurisdiction of the military tribunals over offenses committed by soldiers of the United States army was not exclusive. Coleman v. Tenn., 97 U. S. 509, 24 L. Ed. 1118; Ex parte Mason, 105 U. S. 696, 26 L. Ed. 1213; Willoughby on the Constitution, vol. 2, pp. 1204-1207, §§ 1010, 1011; note Hughes v. Commonwealth, 31 L. R. A. (N. S.) 710; Franklin v. United States, 216 U. S. 559, 30 Sup. Ct. 434, 54 L. Ed. 615.

Article 92 of the Articles of War embraced in the act of Congress mentioned (U. S. Comp. St. § 2308a [92]) is as follows:

“Any person subject to military law who commits a murder or rape shall suffer death or imprisonment for life, as the court-martial may direct; but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the states of the Union and the District of Columbia in time of peace.”

The language of the old statute construed in Coleman v. Tenn., supra, contains the following language:

“In time of war * * * murder shall be punishable by the sentence of a general court-martial * * * when committed by persons * *. * in the military service of the United States.”

We are aware of no. judicial construction of the recent act of Congress touching the question raised, and in our judgment the language used in the new statute is not indicative of an intention upon the part of the Congress to change the rule applied by the courts to the former statute. A soldier of the United States who inurders a citizen of a state offends against both the military and the state laws and is amenable to both. Grafton v. United States, 206 U. S. 333, 27 Sup. Ct. 749, 51 L. Ed. 1084, 11 Ann. Cas. 640; Franklin v. United States, 216 U. S. 559, 30 Sup. Ct. 434, 54 L. Ed. 615. It has been held, however, that under the recent act of Congress (chapter 418, supra) the military authorities have the prior right, and that upon their interposition the jurisdiction of the military courts will be given preference over that of the state courts touching offenses committed by soldiers of the United States army in the time of war. Ex parte King (D. C.) 246 Fed. 868.

In the instant case the military authorities have not asserted any prior right to try the appellant by court-martial, nor, so far as the record shows, urged any objection to his trial and punishment, if guilty, by the state courts.

“The choice of the tribunal by which he is to he tried has not been given to the offender.” Ex parte Mason, 105 U. S. 696, 26 X». Ed. 1213; Willoughby on the Constitution, vol. 2, p. 204.

We are therefore of the opinion that the trial court committed no error in refusing to sustain the appellant’s plea to jurisdiction of the state courts.

His motion to remove to the District Court of the United States is based upon article 117 of the act of Congress mentioned (ü. S. Comp. St. § 2308a [117]), which article provides for the transfer of causes to the federal courts under certain circumstances, and contains the following language:

“When any civil suit or criminal prosecution is commenced in any court of a state against any officer, soldier, or other person in the military service of the United States on account of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting the military forces thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court of the United States in the district where the same is pending in the manner prescribed in section thirty-three of the act entitled ‘An act to codify, revise, and amend the laws relating to the judiciary,’ approved March third, nineteen hundred and eleven, and the cause shall thereupon be entered on the docket of said District Court and shall proceed therein as if the cause had been originally commenced in said District Court and the same proceedings had been taken in such suit or prosecution in said District Court as shall have been had therein in said State court prior to its removal; and said District Court shall have full power to hear and determine said cause.”

In this prosecution the appellant is accused of murdering a citizen of the state, while the deceased was pursuing his civil avocation and the appellant was engaged in an enterprise in no wise connected with or incident to his duty as a soldier. His connection with the homicide is denied by him, and there is no contention that the prosecution was commenced “on account of any act done under color of his office or status”; nor was it • an act “in respect to which he claims any right, title or authority under any law of the United States respecting the military forces thereof, or under the law of war.” If he committed the act charged, it is not justified by any law. Wte are therefore of opinion that the trial court committed no error in refusing to grant his petition for removal.

This cause was originally set for trial November 12th, and a special venire of 50 men regularly ordered for appearance on that day. Both the state and appellant announced ready for trial, and thereafter it developed that only 35 of the special venire had been served with summons to appear. The appellant thereupon made a verbal objection to proceeding with the selection of the jury until at least 36 men were present. The court thereupon, as stated in the bill of exceptions, “of his own motion passed said case until the 19th day of November, dismissed the special venire of 50 men without the consent of defendant and when no Motion to quash' had been filed, and ordered another special venire.” When the case was called on the 19th of November, appellant objected to proceeding to trial, insisting that.the second special venire, was illegal, contending that, the first venire having been unlawfully dismissed, the court was without authority to order a second; and, the motion to quash having been overruled, the question is here for review.

It has been held that, when a special ve-nire, which is a writ issued by order of court, has been regularly issued, and the veniremen summoned to appear as required by the writ, and the accused served with a copy of the sheriff’s return showing the service, the court is not authorized to discharge the veniremen without just cause, and without the consent of the accused, and to order a second venire. Bates v. State, 19 Tex. 123; Sharpe v. State, 17 Tex. App. 486; Hall v. State, 28 Tex. App. 146, 12 S. W. 739.

In the Bates Case a venire of 36 jurors was summoned in attendance upon the court. Twelve of them, however, selected were upon the jury jn a civil case, and were not ready to return their verdict at the time the case against Bates was called. He objected to the selection of the jury in his case in the absence of these 12. The court excused them. The defendant excepted. The court reversed the case, stating, in substance, that while the valuable right to have a special venire might be defeated in whole or in part by the nonattendance of jurors or by their dismissal for sickness, disqualification, or other good cause, that the trial court would have no right to suffer 12 of the special venire to- become jurors in the trial of civil case, and upon that ground to discharge them from the venire. The court remarked:

“For, if 12 of the list may be thus disposed of by the court, so may the whole list be exhausted, and the prisoner’s right would be thereby defeated, and not by any casualty over which the court had not control, but by the gratuitous action of the court itself.”

In Hall’s Case, 28 Tex. App. 147, 12 S. W. 739, a special venire of 60 men was ordered. By inadvertence 59 only were Included in the venire list, and 57 were summoned. The action of the parties and views of the court is disclosed in the following quotation from the opinion, reversing the judgment:

“Defendant, made a motion to quash the service of the special venire which had been made upon Mm. He did not make any motion to •quash the special venire itself. But when his motion to quash the service was submitted, it was discovered that defendant had, on' verbal motion, applied for a special venire of 60 men,' but that by inadvertence only 59 names had .been drawn or placed upon the list attached to the writ. The court asked defendant if he waived his right to a venire of 60 men, or if he desired to make an application, under oath, for a special venire, as provided by article 607 of the Code of Procedure. Defendant replied that he did not waive any of his rights, but that he did. not wish to make oath in writing for an- ' other special venire; whereupon the district .attorney made his oral motion, as provided by article 606, and upon his motion a new special venire for 60 men was ordered. When the case was called for trial, the defendant objected to this new special venire, because he had never moved to' quash or vacate the original special venire; that in fact it had never been quashed or vacated, there being no order of the court to that effect; that the order for and summoning the second special venire was unauthorized and void; and that he should not be compelled to select a jury therefrom.”

It was held in Hall’s Case, and there are a number of others to the same effect, that the fact that all of the veniremen were not summoned, or that the number attending was less than 36, would not require the court to quash the. venire even though the appellant made a motion therefor. Taylor v. State, 14 Tex. App. 340; Martin v. State, 38 Tex. Cr. R. 462, 43 S. W. 352; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345; Johnson v. State, 63, Tex. Cr. R. 50, 138 S. W. 1021; Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235; Keets v. State, 76 Tex. Cr. R. 384, 175 S. W. 149.

The record discloses no obstacle in the instant case to the court’s requiring appellant at the time he announced ready for trial to proceed-with the selection of the jury from those present, it affirmatively appears from the bill of exceptions, which is not qualified or explained by the trial judge, that the appellant made no motion to quash the first venire, and it further -affirmatively appears from the bill that the court discharged the veniremen present in response to the writ without the appellant’s consent, and without good cause.

Thus presented, the question before us for decision is: Could the court legally dismiss the 35 veniremen who appeared under the first venire when both the appellant and the state were ready for trial, when no motion was made to quash the venire, when the appellant did not consent to its dismissal, when there appeared no good cause to discharge them, and when conditions were such as to authorize the court to require the appellant to proceed to select the jury from the veniremen present? We think under the authorities mentioned, and in accord with the sound reasons there set forth, we should hold that the court was not authorized.

The development of the case discloses that the state’s theory ⅛ to the effect that the appellant and three other soldiers formed a conspiracy to employ a chauffeur to take them out in his car, to murder him, procure his car, desert the army, and use the car in fleeing to Mexico; that, pursuant to this conspiracy, they did employ Burns, the deceased, and murdered him. Briefly summarized, the facts show that on the evening of the homicide, after dark, the appellant and his three companions arranged with deceased to take them, for hire, in his automobile to a point near San Antonio, that after traveling some 12 or 13 miles the automobile was stopped, and a conversation had between appellant and some Mexicans, and that the automobile was then turned around and driven in the direction of San Antonio, along the same road that had previously been gone over, a distance of about 3 miles, and that the car was again stopped and the homicide took place. The point at which his body was discovered was about 100 yards distant from a house occupied by a Mexican who testified as a witness. The body of deceased was found the following morning, having two or three wounds from pistol shots upon it and a number of wounds about the head, crushing the skull. It was found in a field some few yards from, the road mentioned, and there was evidence that around the automobile a struggle had taken place. Blood had been spilled on the automobile and in it and on the ground near where it stood. The automobile was found the following day, abandoned.

Appellant’s theory was that he was not a party to, nor possessed, of any knowledge, of, the conspiracy or' of the intent of his companions to injure the deceased or take his property; that he had in his room at the military camp a suit case belonging to some of his companions which they desired to obtain, and that he consented to accompany them in the car with deceased for the purpose of obtaining this suit case, and that while en route his companions suggested that they desired to go somewhat out of the way on the road where the homicide took place for the purpose of getting some girls and bringing them back to the city; that appellant consented to this diversion, and to oblige his companions he got out of the car at the first stop mentioned and made inquiry of Mexicans with reference to the locality of the place at which the girls were claimed to reside by his companions; that the Mexicans with whom he talked were unable to speak English, but by their gestures indicated that the parties for whom he was looking lived further back on the road, and that when they reached the point where the homicide took place, at the suggestion of his companions, he had gone to the house of the Mexican, who lived about 100 yards from where the homicide took place, on the theory suggested by his companions that the girls for whom they were searching would be found there; that while on this mission the difficulty occurred, and was over when he returned; that he noted the firing of the shots, the excited language of his companions, and their disturbed condition upon his return, and upon inquiry of them as to the cause was ordered at the point of a pistol to enter the car and drive to town, which he did, stopping at the house in San Antonio, at which there lived a woman called Mrs. Dufree, with whom, the evidence indicates, he was on terms of intimacy.

The state introduced the evidence of a Mexican with whom appellant conversed at the first stop of the automobile mentioned, and the witness, who was used by the state, claimed to be unable to understand English and to have known what was said by appellant upon the occasion only by information he received from other- Mexicans who were in his company. The details of what this witness claimed appellant said were not admissible, coming from him, because his knowledge of what was said by the appellant was hearsay. Its admission, however, we think, was harmless for the reason that his statement as to what took place coincides with the testimony of the appellant upon the same subject.

Appellant and one Creighton were arrested some two weeks after the homicide and charged therewith. The two others who were in the party fled to Mexico, and were brought back under arrest some four months later. On the trial Creighton testified, under prom- ' ise of immunity to the extent of fixing his punishment at 15 years’ confinement in the penitentiary, and in his testimony inculpated the appellant as a principal actor in the homicide, the leader and originator of the conspiracy. It was shown that he had, during his confinement, made a number of statements concerning his connection with the homicide, such statements made to officers of the court, some of them in writing and verified hy his affidavit, and that he had not inculpated appellant in these statements, but, on the contrary, had exculpated him, and that he consented to give the statement inculpating -him only on the. day that he gave his testimony at the trial, and under promise of the immunity mentioned.

We think appellant should have been accorded the privilege of inspecting the previous written statements of the alleged accomplice. Wharton’s Grim. Ev. § 564, vol. 2. They bore on the truth of the evidence given by the witness on the trial. From the cross-examination it is disclosed that appellant had the benefit of them for- the purpose of affecting the credibility of accomplice testimony, and, the bill not disclosing that the 'statements were desired for any other purpose, we think the bill shows no harmful error.

It was proved by the sheriff that on his return from Mexico with the two participants in the homicide who fled he obtained from them some information, and that, acting thereon, he went with them and under their direction to a certain culvert and obtained three pistols and cartridges which were identified at the trial by the accomplice Creighton as those used in the homicide, and in his testimony he connected appellant with them. The admissibility of this testimony of the sheriff is challenged on the ground that it was an act of a coconspirator, or declaration by him subsequent to the completion of the conspiracy. It appearing that on the information gotten from the accomplice the weapons identified by the other evidence as used in the homicide were found, the case is within a well-defined exception to the rule rejecting as evidence the declarations and acts of a coconspirator made after the completion of the offense. The action of the trial judge in admitting the testimony is, wb think, sustained- by various decisions of this court, among them Henderson v. State, 50 Tex. Cr. R. 66, 172 S. W. 793; Kennon v. State, 46 Tex. Cr. R. 359, 82 S. W. 518; Pace v. State, 20 S. W. 762; Pierson v. State, 18 Tex. App. 524.

The sheriff testified that prior to the arrest of appellant and Creighton he talked to a woman named Mrs. Cook, and that he talked with another woman whom he described, whose name he did not know, but whom he said was registered at a certain hotel in the name of Mrs. Funk; that both of these women were witnesses in the case, but that he had been unable to find them, though he had made diligent search and inquiry for them. In connection with his testimony, as shown by the bill, a subpoena for Mrs. Cook and Mrs. Dufree, together with the sheriff’s return thereon stating that they could not be found, was introduced in evidence.

We are of opinion that the fact that these two women had disappeared and that search had been made for them, and a subpoena issued for them with the return mentioned, was not admissible against the defendant; there being no facts introduced relevant to show that he had been instrumental in causing their disappearance or preventing their attendance. He had been confined in jail from the time of his arrest. The objection made by the appellant to the introduction of this testimony is sustained, we think, by the eases of Askew v. State, 59 Tex. Cr. R. 152, 127 S. W. 1037, Day v. State, 62 Tex. Cr. R. 448, 138 S. W. 132, Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 892, Maines v. State, 23 Tex. App. 576, 5 S. W. 123, as well as other cases listed in Branch’s Ann. P. C. § 155.

Several criticisms are addressed to the court’s charge on the law of principals particularly to the following language':

“If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground when the offense was actually committed or not.”

He also charged, on the law of alibi and circumstantial evidence.

Appellant insists that the authorities cited by Mr. Branch in his Ann. P. O. § 685, condemn the charge given under the circumstances as erroneous, laying stress upon the fact that such a charge was not applicable to a case in which the state relies upon circumstantial evidence, or in which the defense of alibi arises.

A discussion in detail of the attack upon the charge we deem unnecessary. Suffice‘it to say that we do not regard it subject to any of the criticisms specifically addressed to it in the exceptions filed, nor is it, in our opinion, obnoxious to the legal principles governing the law of principles where there is evidence of a conspiracy to commit the offense. We fail to discern in what particular the charge of the court is at variance with the charges on the subject, approved in Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583, Renner v. State, 43 Tex. Cr. R. 349, 65 S. W. 1102, and other cases cited in Branch’s Ann. P. C. § 686. The court was not required to charge on the law of circumstantial evidence. The witness Creighton gave direct testimony that appellant was a conspirator in the plan to murder Burns, and that he participated in the homicide. The court also charged on alibi, and under the facts, we think, this was an instruction which was not required of him. The defense of alibi arises when there is evidence that appellant is at a point where he could not have been guilty of participating in the offense. Wharton’s Crim. Law, § 380, vol. 1, p. 487. The theory and testimony of the state was that appellant actually had part in killing deceased. His theory and testimony admits that he was with the persons who murdered Burns at the time the car stopped, that he went to the scene of the homicide with them and returned with them, but claims that at the moment the blows were struck and the shots fired he was not at the immediate place of the killing and had no hand in it. If appellant did not enter into a conspiracy to kill the deceased and did not take part in the homicide, or did not, knowing the unlawful purpose of his companions, aid or encourage them in the commission of the act, he would not have been guilty of the crime though he was present. If, however, he was a party to such a conspiracy, or, knowing the unlawful purpose of his companions, aided or encouraged them in their unlawful act, he might be guilty, though he was not at the automobile at the immediate time the blows were struck or the shots fired. In other words, to instruct the jury that the mere fact that appellant had gotten out of the automobile and gone to the house 100 yards away, as he claims to have done immediately before the killing, would require his acquittal on the theory of an alibi, would be to ignore the rules of law which apply to cases of principals and conspirators in committing a homicide and give too narrow a construction to the term “present,” used in the statute. See Branch’s Ann. P. G. § 680; Wharton’s Cr. Ev. vol. 1, p. 676; Cain v. State, 42 Tex. Cr. R. 210, 59 S. W. 275.

It would have been proper for the court to have instructed the jury more specifically on appellant’s theory as to the facts, but the special charge requested by the appellant upon the subject was inaccurate, in that it ignored the theory arising from the evidence that he had conspired with the others to kill Burns.

We have considered the assignments of error which we have not discussed, but deem it unnecessary to review them.

We find no reversible errors in the record save those we have pointed out, and because of those we have mentioned, the judgment of the district court is reversed, and the cause remanded.
      (§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=3For other cases see same topic and KEY-NUMBER in a!J Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    GREEN v. STATE.
    (No. 5262.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Ceiminal Law <&wkey;1144(13) — Appeal—Presumption — Evidence.
    Where record is before Court of Criminal Appeals without statement of facts or bills of exception, court will presume evidence was sufficient to sustain case as charged by indictment.
    2. Wab <&wkey;4 — Prostitution—Authority op Legislature.
    State Legislature had power to make it a criminal offense to solicit a soldier in the service of the United States to meet a woman for the purpose of illicit intercourse.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Will Green was convicted of making an appointment for and soliciting a soldier in the service of the United States to meet a woman for the purpose of illicit intercourse, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment charges appellant with making an appointment for and soliciting a soldier in the United States service to meet a woman for the purpose of illicit intercourse.

The record is before us without a statement of facts or bills of exception. Under such circumstances the rule is that this court will presume that the evidence was sufficient to sustain the case as charged by the indictment. A state of facts will be presumed by this court which were provable under the allegations of the indictment, in the absence of a statement of facts. We have other statutes with reference to punishing solicitors of this character, of a general nature, prohibiting all parties from doing such prohibited acts. In this particular matter the Legislature provided that parties who made such solicitations between a woman and a soldier should be punished as described in the statute. No sufficient reason has been suggested why the Legislature was not clothed with this authority.

Finding no reversible error in the record, the judgment is affirmed.
      <gr»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    HESTER v. STATE.
    (No. 5239.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    Ceiminai, Law <&wkey;1086(S) — Appeal—Record —Complaint, Information, or Indictment.
    Upon an appeal from a conviction, where the record presents neither complaint, information, nor indictment as a basis for the prosecution, the judgment of the lower court will be reversed, and the cause remanded.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Martin Hester was convicted of vagrancy, and appeals.
    Reversed and remanded.
    E, B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for vagrancy. We find neither complaint, information, nor indictment in the record as a basis for the prosecution, in the absence of which it is ordered that the judgment of the lower court be reversed, and the cause remanded.


text:
    WILLIAMS v. STATE.
    (No. 5240.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.
    On Motion for Rehearing, Jan. 29, 1919.)
    1. Criminal Law <&wkey;1099(5) — Appeal-Statement of Facts — Time of Filing.
    Where statement of facts was filed more than 20 days after adjournment of court, and there was no order in record authorizing filing of such statement after adjournment, evidence will not be considered.
    On Motion for Rehearing.
    2. Fences &wkey;>28(3) — Injury to — Criminal Responsibility.
    Evidence held insufficient to support conviction for removing the fence belonging to another.
    Appeal from Gregg County Court; E. M. Bramlette, Judge.
    John Williams was convicted of breaking, pulling down, and injuring the fence of J. R. Cástleberry without his consent, and he appeals.
    Reversed and remanded.
    Felix J. McCord and Reagan S. Wyche, both of Longview, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of breaking, pulling down, and injuring the fence of J. R. Castleberry without his consent.

The court adjourned on the 27th day of July, and the statement of facts was not filed until the 22d day of August, making more than 20 days after the adjournment of court. There is no order in the record authorizing the statement of facts to be filed after adjournment. The evidence will not be considered, therefore: First, because there was no order allowing’it to be filed after adjournment of the term; and, second, if there had been, it was filed too late.

The judgment will be affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed, the opinion stating that the evidence was not before the court in such manner as to be considered. The record has been perfected.

Appellant was charged with tearing down a fence belonging to Castleberry. The evidence shows that the fence seems to have been considered as on thei dividing line between the land of appellant and that of Castleberry, and for some years. Appellant gave notice to Castleberry of his purpose to move the fence, and thereafter did remove it. Castleberry preferred criminal charges against him for tearing down his (Castle-berry’s) fence. The evidence is in conflict as to who owned the fence, or rather upon whose land the fence was situated. The county surveyor surveyed the land and placed it clearly inside of and on appellant’s land. Castle-berry said the surveyor was mistaken; that he himself was a surveyor, and had surveyed the land, and it was just inside of and on his land. As we view the case, the judgment should be- reversed. It is not soi much the question here as to who was the owner of the land on which the fence was situated, but as a fence supposed to be on or near the dividing line. Appellant claimed the land, and a preponderance of the evidence indicates he was the owner. After giving notice that he purposed to remove this dividing fence, the law would justify him in removing it. Appellant should not have been tried for removing Castleberry’s fence. Such is the view we entertain of this case.

The motion for rehearing is granted, the af-firmance set aside, and the judgment reversed, and the cause remanded.
      <©=»For other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


author: LATTIMORE, J.

text:
    LEWIS v. STATE.
    (No. 5256.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Cbiminal Law <&wkey;889 — Correction of Verdict by Jury.
    In prosecution for unlawfully carrying a pistol, court did not err in permitting jury in open court, when returning the verdict, to correct it by inserting words “as charged in the indictment.”
    2. Weapons <&wkey;7 — Pistol Law — Lack of Intent to Violate.
    Lack of evil intent, or intent to violate the law, in carrying a pistol unlawfully, is no justification.
    Appeal from Matagorda County Court; W. C. Carpenter, Judge.
    George Lewis was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    E. B. Hendricks and E. A. Berry, Asst. Attys. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Matagorda county for unlawfully carrying a pistol. His only defense seems to have been that he was at the time a deputy city marshal in the town of Bay City, and he claims that his carrying said pistol outside of the city limits of Bay City was not a violation of the law. It seems that, in connection with his other business, he was the proprietor of a jitney car, and while acting in that capacity carried passengers some distance outside of the city limits of Bay City, and on the occasion in question, while at the place outside .of said city, to which he had carried the passengers, there arose a quarrel, in the course of which appellant drew his pistol. There is no statement of facts in the record, but we gather, from the charge of the court and the two bills of exception taken by appellant, that the above are substantially the facts in the case.

Appellant complains here 'because the court permitted the. jury, in open court, and when returning their verdict, to make a correction of the same. Said correction consisted in inserting the words “as charged in the indictment” in said verdict. We do not think there is any error in permitting juries to correct their verdicts, and certainly none in making such correction as was made in this case.

Appellant further complains because the court did not submit a special instruction to the jury that, if they believed that he carried his pistol without intent to violate the law, they should acquit. The lack of evil intent in the carrying of a pistol unlawfully is no justification. Johnson v. State, 73 Tex. Cr. R. 133, 164 S. W. 833.

There are no other errors complained of in the record, and, there being no statement of facts, the judgment is affirmed.
      <§=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TONNAHILL v. STATE.
    (No. 5111.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Abortion &wkey;>l — Giving Medicines.
    One who gave a pregnant woman medicine, and told her not to use it until he gave her instructions with reference to its use, was not guilty of abortion, if she used the medicine when he was not present and without his instructions, and procured an abortion.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Abortion.]
    2. Abortion <&wkey;6 — Indictment—Variance.
    Under an indictment charging that an abortion was procured by administering medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb, and did then and there by the use of the means aforesaid procure an abortion, a conviction could not stand for, procuring a premature birth by such means.
    3. Abortion <&wkey;8 — Burden of Proof.
    Under an indictment charging that an abortion was procured by administering medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb, the burden was on the state to" show beyond a reasonable doubt that the child was alive at the time of the administration of the medicine, and that the medicine was administered for the purpose of destroying the fetus while in the womb.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Sam Tonnahill was convicted of abortion, and he appeals.
    Reversed and remanded.
    Wear & Frazier, of Hillsboro, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The conviction was for abortion charged to have been committed by administration of a drug. The theory of the state and testimony of the prosecutrix were that appellant gave to the prosecutrix a certain medicine which was subsequently used by her in producing the abortion. She said that when he handed her the medicine he told her to keep it, and he would tell her when it was time to take it, or to keep it until she heard from him, and that she afterwards heard from him, and that some time after hearing from him she took the medicine. She claimed to have received a letter from him, saying:

“I suppose it was from him, as he was the only one that knew I had this medicine.”

The letter was lost, and its existence and appellant’s connection with it developed a sharp issue of fact.

In submission of the case to the jury, the appellant requested the following charge:

“The prosecutrix, Lena Ward, testified that when the defendant gave her certain drugs, which she claimed to have subsequently administered to herself and caused her to abort, he told her not to use such drugs until she heard from him. If such was the fact, the defendant would not be guilty of the crime charged, unless he did subsequently give her instructions with reference to the use of said drugs. Now, the burden of proof is upon the state to prove beyond a reasonable doubt the defendant’s guilt, before you would be authorized to convict him. You are instructed, therefore, that even though you may believe the defendant gave Lena Ward the medicine, still, unless you believe from the evidence beyond a reasonable doubt that the defendant subsequently directed the said Lena Ward to use the medicine, which she claims to have been theretofore delivered to her by him, you will return a verdict of not guilty, and so say.”

It is conceded by the Assistant Attorney General that this charge should have been given, and that its refusal is error. In this conclusion we agree with him. Appellant was not present at the time the medicine was taken by the prosecutrix. Exception was also reserved to the charge, because it submitted a state of facts for the consideration of the jury, as a basis of conviction, which were not charged in the indictment. ■ The indictment charged the abortion was procured by administering and causing to be administered to prosecutrix, a pregnant woman, with her consent, a drug and medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb of the said -woman, and did then and there by the use of the means aforesaid procure an abortion as aforesaid. The court, after submitting the above charge to the jury, further instructed them that if the defendant, by the use, if any, of the means, if any, aforesaid, procured a premature birth, if any, of said fetus, if any, then and in that event they will find the defendant guilty. This phase of the statute was not charged in the indictment. We think the exception was well taken, and the charge should have been corrected, and that clause of it omitted, and not given to the jury. The allegation of the indictment was that defendant destroyed the life of the fetus in the womb, and by this means procured an abortion. The statute defines an abortion as follows:

“By the term ‘abortion’ is meant that the life of the fetus or embryo shall be destroyed in a woman’s womb, or that a premature birth thereof may be caused.” Pen. Code 1911, art. 1071.

Either of these conditions being present would authorize the grand jury to so charge, and both could be charged if thought necessary. Either would form the basis of the prosecution. But the state in this case elected to charge and try him for destroying the life of the fetus in the womb, and not by bringing on a premature birth. That these two provisions are different is shown by the language employed by the Legislature. In one it would be necessary to destroy the life of the fetus in connection with the abortion, and in the other, with reference only to premature birth. If the abortion by premature birth was relied upon, it should have been charged in the indictment, which was not done. The court, therefore, authorized a conviction upon a proposition not involved in the allegation.

There is another question involved, and upon it special instructions were asked and refused; that is, unless the jury should find from the facts that the child in the womb of prosecutrix was a live fetus, and its life destroyed by the means set out as a prerequisite to the abortion, the jury should find in favor of the defendant. This is presented in two or three ways by special charges, and all refused. It was necessary for the state to prove the fact that the child was alive, and that the medicine administered was done for the purpose of destroying its life, and in this manner produce the abortion. If the child was not alive, then the case was not proved. The testimony upon this is very meager and quite uncertain. It left room for doubt as to whether the facts sustained this allegation. The court, therefore, was in error in not giving these instructions to the jury. They could not find appellant guilty under the indictment, unless the facts would show beyond a reasonable doubt that the child was alive at the time of the administration of the drugs, and that the medicine was administered for the purpose of destroying that life as a means of producing the abortion.

For the reasons indicated, the judgment is reversed, and the cause remanded.


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    Ex parte JOHNSON.
    (No. 5329.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    Bail &wkey;>49 — Murder—Evidence.
    In a homicide case, held, that the state had not sufficiently met the burden imposed upon it to establish a case of murder in the first degree, so as to warrant the court in refusing the accused bail.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Leonard Jolinson was indicted for murder. From an order and judgment refusing him bail, he appeals.
    Reversed.
    Dorough, Crumpton & Lincoln, of Texa-kana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the Statq.
   LATTIMORE, J.

This is an appeal from the order and j'udgmerit of the criminal district court of Bowie county, refusing.the relator bail. Relator stands charged by indictment with the offense of murder, alleged to have been committed on the 28th day of December, 1918, and the lower court, after hearing the evidence, entered its order remanding, the relator to the custody of the sheriff of said county, from which he has appealed.

We forbear any extended discussion of the evidence in this case, in view of the fact that it will be tried in the courts. This court, in the case of Ex parte Firmin, 60 Tex. Cr. R. 226, 131 S. W. 1116, holds that the burden is upon the state to establish a case of murder in the first degree, and cannot be upon the relator, and that unless the record of the case, as presented to this court, shows that the state has made out that sort of case, bail will be granted.

The record discloses no evidence of ill will between the parties prior to the night of the 25th of December, 1918, at which time the uncontradicted evidence shows that deceased, while under the influence of liquor, made an assault upon the relator, and ran him away from the place where he was staying, and used much rough language towards him, and apparently towards his wife. The wife and sick baby of relator also left the house, and the wife testified on this hearing that when she got to her husband, and told him what language the deceased used toward her, that he walked the floor and cried. The evidence further shows that either the next day or the day following relator sent word to the deceased that he wanted to see him and make friends, which meeting, as requested, was by the deceased refused. Subsequently the trwo men met on the morning of the'28th, and the shooting occurred.

The record as made in the court below is not such as to satisfy this court’s mind that the state has met the burden imposed upon it, and the judgment of the lower court is reversed, and bail fixed in the sum of $7,500, upon giving which the relator will be discharged.


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    KIERNAN v. STATE.
    (No. 4747.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law <5&wkey;1159(2) — Verdict Not Supported by Evidence — Review.
    The court on appeal will not allow a verdict of guilty to stand, where it is clearly against the overwhelming weight and preponderance of the testimony.
    2. Homicide <&wkey;27 — Sanity.
    The killing by defendant of his own son without provocation worthy of the name should call for the closest scrutiny of his mental condition.
    3. Criminal Law <&wkey;48, 1159(5) — Sanity-Review.
    Sanity is a condition precedent to guilt, and when numerous and apparently credible witnesses agree that defendant was insane, and there is no contradiction, the court on appeal cannot allow conviction to stand.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    G. J. Kiernan was convicted of murder, and appeals.
    Reversed and remanded.
    Cobbs & Cobbs and Wm. C. Church, all of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was charged with murder of his 20 year old son, and this is his second appeal. See 190 S. W. 165. The killing was done with a pistol, and occurred at the home of appellant and deceased in the afternoon.

No one testified as an eyewitness to the killing, but it is made -clear from the record that appellant had armed himself with a pistol, and had sent word to his son not to come home on the fatal afternoon; that if he did he would be killed, but deceased did come, and when the two met in the house the son was shot, dying instantly. The only cause for such conduct on the part of appellant appears from the testimony of his wife, who was the mother of deceased. After testifying to the condition of her husband’s mind and health for years, and many of his acts and words, and that he was subject increasingly to what she called “spells,” she said:

“The morning of the trouble I called John to breakfast. I always get up and get breakfast myself. I called John first because he had to go out first. I didn’t call Mr. Kiernan. I called John first, and had his breakfast on the table. As I put his lunch up, he always carried lunch to work. When I put his lunch up, I took a cup of coffee and went to the front gallery and sat down there; in the meantime his father had gotten up and gone to the bathroom. After calling John to breakfast, I went back to the kitchen and put up his lunch, put up John’s lunch; then I put breakfast on the table for the family, so they could get in and eat when they got ready. After getting breakfast on the table and John’s lunch put up, I took a cup of coffee and went on the front gallery, as I usually do in the morning, because I never eat early breakfast. I was sitting out there. I wasn’t thinking any more about it. I knew the father was up, and the boys getting ready to go to work, and the other members of the family also getting up. The first thing I knew John came out of the house, and I noticed when he came out he was a little excited. Mr. Kiernan told me- John was trying to run the house, and he wouldn’t have it that way, something about slamming the door. That afternoon Mr. Kier-nan came back home late. He did not come to dinner that day. It must have been about 5 o’clock when he got home. He came to the back door with a pistol in his hand, and told me, if I didn’t want a tragedy there, not to let John come home that evening. I told him I had sent him word not to come by his sister and brother, but I would go and call him myself. I had no telephone in the house at the time. I went to a drug store down below the house, and telephoned John not to come home. I told him that Mr. Kiernan had a pistol, and I insisted that he not come home. He first said he would come; then I told him what trouble it might lead to, and he said: ‘What shall I do.’ I says: T don’t know, John; wait until to-morrow anyway, until your father gets this spell off. I think then you can come back.’ I also said: ‘Go ask some officer; they can give you advice better than I do. Don’t by any means come home, but, if you should come, come in the back way.’ He said: T can’t come in the back way.’ I said: ‘Mr. Heffner will let you come in his back lot.’ He said: ‘All right, mamma; I will not give you any trouble; I will do as you say.’ That led me to believe he would not come home. I stayed on the back gallery to watch for him, I thought, if he came that way, I would see him and send him back, if I could see him before he got in. Mr. Kiernan’s condition was extremely nervous at that time; he had very little to say and had absolutely no control over himself. I put some supper on the table, and called the children and father into supper. The babies came in, and the father would not eat anything; came and sat in the dining room door and talked to me. I remained on the back gallery, and the babies were eating their supper, and Mr. Kiernan was talking to me through the screen door, through the dining room leading to the back gallery. He turned and walked into the room. I don’t know what happened. I heard the pistol fired is all I can say.”

No other witness gave any testimony as to the cause or motive for the difficulty. It was not contended by counsel for the appellant on the trial that he did not do the shooting, and apparently the “only defense was that of insanity.” The brother, daughter, and wife of appellant testified to many acts of his, extending over a period of many years, showing that his mind was unsound, and leading them to the conclusion that he was insane, as each of them testified he was at the time. James Young and Thomas L. Conroy, who had known appellant for years, detailed his conduct, and swore that in their judgment he was insane. Five reputable physicians, including Dr. Francis White, of the Southwestern Insane Asylum Staff, testified that appellant was insane; one or more of them stating that on a former trial they had testified that they believed him sane, but had changed their minds since. The only other witnesses introduced were as to facts immediately attendant upon the killing, or just before or after same, and none of them were asked as to appellant’s mental condition. The state did not put on a witness to prove the sanity of appellant, nor any witness to impeach any of the defense’s witnesses who swore appellant was insane.. The statement of facts was prepared by the trial court, who certified that the attorneys for the respective parties had failed and been unable to agree thereon, and we are sure it is a fair statement.

We are loath to disturb the case on the finding on the facts, and do not believe we should do so in cases where there is merely conflict of testimony; but when we are convinced that the verdict is clearly against the overwhelming weight and preponderance of the testimony, we do not feel at liberty to close our eyes to that fact out of deference to the verdict of the jury. The unnatural and horrible character of this man’s act, killing his pwn son, apparently without provocation worthy of the name, as disclosed by the record, should call for the closest scrutiny of his mental condition before he should be convicted. Our merciful and just law makes it a necessary condition precedent to guilt that the act must have been that of a sane man, and not that of one irresponsible, and when all the witnesses on that point, and they are numerous and apparently credible, agree as to the fact of appellant’s insanity, and there is absolutely no contradiction of that fact in the record, we cannot allow the conviction to stand.

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


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    JOHNSON v. STATE.
    (No. 5249.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Homicide &wkey;141(3) — Assault with Intent to Murdee — Indictment.
    An indictment, alleging that defendant made an assault upon I. J. with intent to kill the said I. J., sufficiently charged assault with intent to murder, although the word “murder” was not used.
    2. Oeiminal Raw &wkey;>1090(8), 1120(4) — Matters Reviewable — Record.
    Where there is no evidence in the record and no bill of exceptions reserved in a prosecution for assault with intent to murder, the appellate court cannot review the proposition that the verdict of the jury was contrary to law and the evidence, in that the court erred in permitting a witness to state that defendant, previous to the assault, had cut his wife.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Kirven Johnson was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder, his punishment being assessed at two years’ confinement in the penitentiary. He attacks the indictment upon the theory that it ddes not charge the offense of assault with intent to commit murder. Omitting formal parts and dates, the indictment alleges that appellant “did then and there unlawfully, with his malice aforethought make and commit an assault in and upon Isabella Johnson with the intent then and there to kill the said Isabella Johnson against the peace and dignity of the state.”

Two grounds are urged; Eirst that it charges no offense against the laws of the state, there being no such offense as an assault with intent to kill in the law of Texas; and, second, that nowhere in the indictment is the word “murder” found or named. We are of opinion that the indictment is sufficient. The identical form as here set out has been approved in Lyons v. State, 9 Tex. App. 636, Smith v. State, 31 Tex. Cr. R. 34, 19 S. W. 546, and Jackson v. State, 48 Tex. Cr. R. 650, 90 S. W. 34. Eor a great number of other cases listed by Mr. Branch, with analogous reasoning and sustaining these authorities, see his Ann. P. C. § 2059. These authorities all hold that where the indictment charges that the accused with malice aforethought made an assault with intent to kill, it sufficiently charges an assault with intent to murder. It is not necessary in such indictment to charge the intent to kill and murder. The indictment, we think,' is sufficient, and the court did not err in overruling the motion to quash.

The record is before us without a statement of facts or bills of exception. The motion for new trial was based upon the proposition that the verdict of the jury is contrary to the law and the evidence, and that the court erred in permitting the witness, over objection of appellant, to state that defendant cut his wife about June 19, 1917, and this prejudiced the minds of the jury against the defendant. This is only stated as a ground of the motion. There is no evidence in the record, nor was a hill of exceptions reserved to this alleged error.

As the record is presented, the judgment will be affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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    ROACH v. STATE.
    (No. 5250.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Criminal Law <&wkey;829(4) — Instructions —Homicide.
    In a homicide case, assumption in special charge as to interference by deceased in an attempted reconciliation between defendant and his wife held not warranted, further than as submitted in the main charge.
    2. Homicide <&wkey;339 — Harmless Error — Ex-' clusion of Evidence.
    In a homicide case, where defendant claimed that deceased had interfered to prevent a reconciliation between defendant and his wife, refusal of the court to allow defendant to prove by a witness that in his observation of the relations between defendant an'd his wife they appeared pleasant was not reversible error, whore it was undisputed that defendant did have a difficulty with his wife and had left her.
    3. Criminal Law <&wkey;1092(16) — Bills of Exception — Filing-.
    Bills of exception, not filed by the clerk of the trial court, will not be reviewed.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    D. E. Roach was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for murder, and punishment fixed at confinement in the penitentiary for a period of 40 years.

The evidence discloses that appellant, a young man about 21 years of age had separated from his wife to whom he had been married about 5 months. His wife was living at the home of deceased, Garner. Appellant, before the separation, had, according to the evidence, entered a plea of guilty upon a charge of whipping his wife. He was desirous of a reconciliation with her, and on the evening before the homicide next morning had gone to the residence of the deceased and requested him to hand the photograph of appellant to his wife; that deceased had declined to do so, and appellant claims to have been under the impression, from the conduct of deceased in this respect and some others, that the deceased’s intentions towards the appellant’s wife were not good.

On the occasion of the homicide the appellant had been hired to work on the farm of a man whose place adjoined that of Garner, the deceased, and on the morning after he was employed he went to Garner’s field, where the latter and several women, including the appellant’s wife and a young man, were at work. He claims that his purpose was to talk with his wife, and if possible bring about a reconciliation, and that when he spoke to his wife the deceased made a demonstration, attempting to draw his pistol, which he had in his hip pocket wrapped in a handkerchief, and that, believing his life in danger from this demonstration, he fired and killed deceased, shooting a number of times.

The state’s theory was that, while deceased was armed with his pistol, he made no demonstration prior to the shooting, and that appellant’s act in shooting him was entirely unprovoked.

The court submitted to the jury the issues of murder, manslaughter, and self-defense, embodying the principles of both real and apparent danger, in a manner to which we think no substantial objection could be made, and to which no objection was made. The appellant, however, requested some < special charges touching the issue of apparent danger, the refusal of which, we think, in view of the fact that the matter embodied therein was sufficiently covered in the main charge, was not erroneous.

There are some complaints made of the language used by the district attorney in his argument, which complaints, as presented, in our opinion, present no error authorizing a reversal of the case. Nothing is embodied in the bills showing an abuse of the privilege of argument. One of the special charges requested and refused sought an application of the evidence to appellant’s theory that the deceased was instrumental in preventing a reconciliation between the appellant and his wife. We think the court was not in error in refusing the charge, for the reason it did not accurately present the appellant’s theory and was calculated to interpolate matters that did not arise from the evidence. The appellant’s theory and testimony was that, immediately upon his arriving at the place of the homicide, he said, “Good morning;” that his wife said, “Well how come you way over here?” to which he replied, “I came over to talk to you for a while, if possible; if not, perhaps to talk to the whole crowd, to you all.” He testified:

“When I said that, deceased was standing leaning on his hoe handle. Just as my wife spoke, ho removed his hand from the hoe handle, and then, before I said my last word, he started to his pocket, his right hip pocket, and drew out his gun.”

The court, in its main charge 'on the issues of manslaughter and self-defense, gave the appellant the full benefit of the issues of fact growing out of his testimony, and his was the only testimony raising the issues. The charge, the refusal of which is in question, after telling the jury that appellant had a right to seek a conversation with his wife, says:

“And while he was pursuing said investigation, if the deceased interfered or in any way attempted to prevent him from seeing his wife, and that while defendant was making such effort to see his wife the deceased interfered, and. that such interference brought on the occasion that resulted in the defendant killing the deceased, and that the acts above referred to on the part of the deceased brought about the necessity for such killing, and that the defendant acted in his own self-defense as that term is defined to you in the general charge in killing the deceased, you will find the defendant not guilty.”

If the special charge had been in accord with the evidence, it would have been, proper for the court to have told the jury that the appellant had a right to seek an interview and reconciliation with his wife; but the assumption in- the charge that there was some interference on the part of deceased, we think, is not warranted further than that submitted to the jury in the main charge, that if deceased made a demonstration, or if, viewing it from his standpoint, defendant so believed, his action thereon was justifiable.

One of appellant’s bills complains of the refusal of the court to allow him to prove by the witness Duncan that in his observation of the relations between appellant and his wife they appeared pleasant. The court, in his qualification of this bill, states that at the time the evidence was offered its relevancy did not appear from the evidence, and that in sustaining the objection he stated that he would do so for the present, and that it was not subsequently offered. As explained, we are of the opinion that there is no error shown, granting the admissibility of the evidence. The time inquired about is not accurately referred to, and it is undisputed that the appellant did have a difficulty with his wife and afterwards quit her. That their relations may have been pleasant at other times, while doubtless an admissible circumstance in appellant’s favor, its -exclusion under the circumstances is not, we think, reversible error.

We will add that as the record comes here it does not appear that any of the bills of exception were filed by the district clerk. This is possibly an oversight in the preparation of the transcript, and for that reason we have reviewed the bills. If, as a matter of fact, they were not filed, the point made by the state that they should not be considered is well taken.

Finding no- reversible error in the record, it is ordered that the judgment of the district court be affirmed.


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    WILLIAMS v. STATE.
    (No. 5180.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Burglary &wkey;29 — Identity on Stolen Property — Burden op Pboop.
    In prosecution for burglary of crib to steal cotton seed, burden was on state to prove, beyond reasonable doubt, identity of seed found in oil mill, placed there by defendant, with seed stolen from crib.
    2. Criminal Law &wkey;>304(2) — Evidence—Judicial Notice — Seed.
    It is matter of common knowledge that, in storing and handling cotton seed and sorghum seed, the fact that the two kinds have become in some degree intermingled would not be a peculiarity or distinguishing feature establishing the identity of seed from one bale of cotton from seed from another.
    3. Burglary <&wkey;41(7) — Sufficiency of Evi-denpe.
    In prosecution for burglary of crib to steal cotton seed, where guilt depended on identification of such seed, evidence held insufiicient to sustain conviction.
    Appeal from District'Court, Austin County; M. C. Jeffrey, Judge.
    Neal Williams was convicted of burglary and appeals.
    Reversed, and cause remanded.
    C. G. Krueger, of Bellville, and Mathis, Teague & Mathis, of Brenham, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant’s conviction yvas for burglary.

The party injured had stored in a crib on his farm, some five miles from his residence, about a bale of cotton seed. On going to his crib, he found the lock had been broken and the seed removed. The ground in front of the crib indicated that a wagon drawn by small mules had been the means by which the seed were transported. On the same day that the seed were missed, the appellant, who was the owner of a .wagon and two small mules, brought a load of cotton seed, about a bale, to the oil mill at Sealy and sold it. The owner of the lost seed identified the seed sold by the appellant as those which he had lost, and upon this identification the conviction rests. The owner claimed that he was able to identify his cotton seed and distinguish them from others by reason of the fact that in the same crib there had been stored some sorghum cane, and that some of the cane seed and the leaves from the sorghum had been carried by the mice and mixed with the cotton seed; and the further fact that his farm was red dirt and that some of that also became mixed with his seed. The owner’s son identified them by the same means.

Appellant was a farmer, and introduced evidence of several witnesses which, if true, established an alibi; that is to say, the state’s theory was that he had left his home, which was at or near Sealy, and drove to and burglarized the crib on the night preceding the morning on which the seed were missed. His alibi accounted for his presence on the night in question and negatived the fact that he had left his home. He introduced evidence of several witnesses that he had Raised a crop of cotton and had stored the seed in his smokehouse, and that these seed were loaded on the appellant’s wagon from his own crib and carried therein to the oil mill and sold. It was also shown that appellant, in his crop, had raised some sorghum cane; that appellant’s farm was not on red dirt; but that there was red dirt at Sealy where he took the seed and unloaded them. The sheriff examined the appellant’s-crib and says that he found a small quantity of seed scattered around on the floor and a sack of seed, but none out in front of the crib. The appellant and his witnesses claimed that part of the seed which appellant had loaded on the wagon was taken out of sacks in which he had them stored and part of them were loose in the crib. The sheriff in making his inspection went to the door of the crib and looked in, but did not go in. He found no empty sacks.

The state’s case rests upon the proposition that the possession of the property recently stolen from the burglarized premises justifies the inference that appellant broke open the crib in which the seed were stored and sold them. Proof of identity of the seed which were found in the oil mill placed there by appellant, with the seed that were stolen from the crib, is essential. The burden was upon the state to prove this identity beyond a reasonable doubt. Granting that the jury were authorized to disregard the evidence introduced by the appellant showing an alibi and his own explanation of possession of the seed which he sold to the oil mill, we are not satisfied that the owner could identify Ms seed. Cotton seed is an article that is to be found in the possession of almost all the farmers in the part of Tesas where the offense was committed. . Neither the quantity of the seed nor the character of the seed themselves are capable of identification by any marks or peculiarity in their appearance so far as the evidence discloses. Sorghum and sorghum seed are also a common and usual product of the farms in the same locality, and it is a matter of common knowledge that, in storing and handling products of this kind, the fact that sorghum seed or sorghum leaves might become in some degree intermingled with the cotton seed would not be such a peculiarity or distinguishing feature as would establish the identity of the seed from one bale of cotton from the seed of another. And the same principle holds good with reference to the character of the the soil. The evidence does not disclose the quantity of dirt or the quantity of sorghum seed or leaves that were with the cotton seed, does not suggest that the quantity was such as to be unusual, and, since the appellant’s guilt depends alone upon the identification of the cotton seed, we are not satisfied under the evidence to sustain the conviction. A number of cases similar in their nature are found in Branch’s An. P. O. § 2482, and White’s An. O. C. P. § 1152; among them, Polin v. State, 65 S. W. 184; Tollett v. State, 44 Tex. 95.

We therefore conclude that the judgment should be reversed and the cause remanded, which is ordered.
      &wkey;sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes