author: DAVIDSON, J.

text:
    HOECKER v. STATE.
    (No. 3958.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Homicide <$=>310—Assault to Murder-Instructions—Evidence.
    Where the evidence upon an indictment for assault with intent to murder showed that the assaulted party and another by consent engaged in a fist fight, that the assaulted party knocked the other party doWn and showed an intention to inflict further injury on him, when defendant and others interfered, that the assaulted party when it was all over had been cut with some instrument, that he accused defendant of cutting him, and that defendant went into it as a friend of the party first assaulted, a charge of assault with intent to murder was justified.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. <©=310.]
    2. Homicide <©=307 — Aggravated Assault— Instructions — Evidence.
    On such evidence, a charge on aggravated assault was properly submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. <®=307.]
    3. Homicide <©=305 — Principals — Instructions — Evidence.
    On such evidence, a charge on principals was properly submitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. <§=305.]
    4. Homicide <©=301 — Aggravated Assault— Instructions.
    In such ease where the party assaulted had himself assaulted another party and where it was claimed that defendant came to the rescue of such other party, instructions on assault to murder and aggravated assault, not stating that defendant might defend not only himself, but the party first assaulted under the rule of self-defense, were erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=301.]
    5. Homicide <©=301 — Aggravated Assault-Instructions.
    On the evidence under such indictment, an instruction that although the jury believed that the complaining witness was assaulted by some one and that defendant made or assisted in the assault, was erroneous, in failing to state affirmatively that if defendant interfered solely to separate them, he was guilty of no offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dee. Dig. <®=301.]
    6. Homicide <©=303 — Instructions—Principals.
    On the evidence under such indictment, a charge that in passing on defendant’s guilt it must be considered from his standpoint alone and measured by the .intent which he acted on, and not by the intent of any other person, unless defendant knew of such intent and acted thereon, but failing to charge that if the offense was committed by another, and defendant did not know of such other unlawful intent and did not aid' therein, he would not be a principal, was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. <©=305.]
    7. Homicide <©=301 — Aggravated Assault-Instructions — Sele-Deeense.
    On evidence under such indictment, the defendant was entitled to a charge that any person other than the party about to be injured might by necessary means prevent the commission of the offense and use the same force in preventing injury as the person about to be injured, and that if the person assaulted was then attacked or about to attack another and defendant interfered to prevent such an attack, he might use all the force necessary to prevent such an attack.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=301.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Edgar Hoecker was convicted of aggravated assault and battery, and he appeals.
    Re-yersed and remanded.
    Chambers & Watson, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Under • an indictment charging assault with intent to murder appellant was allotted a fine of ?350 by the verdict of the jury under a conviction of aggravated assault and battery.

The confusion brought about by the facts incidental to and a part of this transaction leaves the case with several issues. The court submitted to the jury assault to murder and aggravated assault, and also gave a charge on principals. The state’s case justified the charge given by the court, so far as the issues are concerned.

Briefly stated, it was shown by the prosecution that Ackerman, the assaulted party, and Semlinger had a short conversation in regard to the fact that Ackerman had accused Semlinger of whistling at his (Acker-man’s) sisters at a dance two weeks prior to the occasion of this trouble. Upon the invitation of' Semlinger, Ackerman went outside of the house where the social function was in progress into the yard, and, it seems, undertook to engage in a personal difficulty there, but for some reason they went out farther into the road and engaged in a personal combat. Ackerman knocked Sem-linger down and gave some evidence of the fact that he intended to inflict further injury upon Semlinger, who was lying on his back on account of the blow from Ackerman. This was a fist fight.. At this stage of the proceeding several parties, including defendant, interfered. The fight stopped, and Ackerman, when it was all over, had been cut with a knife or razor or some instrument by some one of the parties. Ackerman testifies that defendant cut him, and that one of the others kicked him in the stomach, and two of them got him by the head and bumped his head against the ground. The theory of the state further was that these parties being friends of Semlinger, they went into it of- their own volition and engaged in the fight, and upon this theory the court submitted the law of principals, on the theory that possibly these parties acted together in the trouble which resulted in the cutting or stabbing of Acker-man.

In the court’s charge upon aggravated assault and assault to murder — and we-are dealing now with aggravated assault, because that is the offense of which appellant was convicted — the court limited the law of self-defense to that of an attack upon matters producing reasonable expectation or fear of death or serious bodily harm. There was no theory in this case, as we understand it, that the injured party had made any attack on defendant. The attack he made was in knocking Semlinger down, and if appellant was connected with the difficulty in any •way, it was by reason of tbe fact that he attacked Ackerman because of that, and that he was in the conspiracy with Semlinger to bring on the difficulty. That was the state’s theory, and, of course, the court should have submitted the state’s theory, but the jury should have been told in submitting the defense of assault to murder and aggravated assault, in its limitation as to self-defense, that he had a right to defend not only himself, but to defend the other man under the law of self-defense, if that question was raised. Appellant had not been attacked by Ackerman, but 'Semlinger had been, and one of the theories was that defendant came to the rescue of Semlinger, and not himself. The charge in this respect was wrong, and an exception was reserved to it. Countercharges were asked on other questions, which were refused after exception had been reserved.

Among other things, the court’s charge is criticized under proper exception that it failed to charge affirmatively the defense of the defendant in that he interfered solely for the purpose of separating Ernest Ackerman and Paul Semlinger, and failed to tell the jury that in such event the defendant would be guilty of no offense, and because the court in his charge on principals failed to tell the jury that if an offense was committed by another and defendant did not know the unlawful intent of the other, and did not aid or encourage, he would not be a principal. We think this exception to the charge was well taken under the facts, and, without repeating the charge in full as asked by the defendant, which was refused, it embodied this idea, that although the jury should believe from the evidence that Ackerman was assaulted by some one at the time and place alleged in the indictment, and that the defendant made or assisted another or others in making such assault, in passing upon his guilt or innocence, it must be viewed from his standpoint alone, and his culpability must be measured by the intent with which he acted, and not from or by the intent of any other person, unless he knew of such intent on the part of the other person and acquiesced therein and acted upon it.

He further asked the charge, which was refused, that any person other than the party about to be injured may, by the use of necessary means, prevent the commission of the offense, and may use the same force and resort to the same means in repelling the aggression and preventing the injury as the person about to be injured; and he further asked the court to instruct the jury if they should find from the evidence that at the time Ackerman was cut and injured he was then attacking or about to attack or injure Paul Semlinger, and the defendant interfered to prevent such attack or injury, he would have the right under the law to use all the force necessary to prevent such injury or attack; and if they should so find from the evidence or have a reasonable doubt thereof, the defendant should be acquitted. These charges, we think, under the facts introduced, should have been given. The state’s theory, of course, was given, and ought to. have been given, to the effect that if the defendant and Semlinger acting together brought about this difficulty, or he was aiding Semlinger in bringing on the difficulty which resulted in the cutting or stabbing of Ackerman, he would be guilty as a principal; but if he interfered as a peacemaker to prevent further fighting, he should be acquitted; or if he came upon the scene and as he viewed it at the time Ackerman had knocked Semlinger down and was in the act of jumping on him and beating him, and he acted for the purpose of relieving .the situation, Ackerman being a much larger man than Semlinger, he was entitled under the law to use all necessary force to prevent the injury to Semlinger, the same as if Ackerman had attacked the defendant. These matters were raised by the evidence pertinently, and should have been given in charge to the jury.

Por these reasons, the judgment is reversed, and the cause remanded.
      <fc=>Eor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ifcssFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    GRIGSBY v. STATE.
    (No. 3957.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    Criminal Law ⅞=1020 — Appeal — County Courts — Jurisdiction.
    On appeal from a corporation court to the county court, the county court’s judgment is final under Code Cr. Proc. 1911, art. 87 (Vernon’s Ann. Code Cr. Proc. 1916, art. 87), where tbe fine assessed is not over $100, and an appeal therefrom must be dismissed.
    (Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. <§=» 1020.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    James Grigsby was convicted in corporation court, and on appeal to the county court a fine of $100 was imposed, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant appealed his case from the corporation court to the county court, in which latter court the case was tried de novo, and a fine of $100 imposed.

Motion is made to dismiss the appeal because this judgment is final, not being in excess of $100. This is a correct motion under article 87 of the Code of Criminal Procedure 1911. See volume 2 Vernon’s Criminal Statutes,- art. 87, and note containing a great number of decisions upon this question. That statute requires finality of judgment in the county court where the fine is not in excess of $100.

The appeal therefore will be dismissed.
      (g^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. HARPER, J.

text:
    SPARKS v. STATE.
    (No. 3934.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Criminal Eaw <®=3iQ87 — Appeal—Record — Showing Recognizance oe Confinement.
    To confer jurisdiction on the Court of Criminal Appeals, the record on appeal from a conviction must disclose that a recognizance was given, or that defendant is in jail and has been continuously confined therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781, 2794; Dec. Dig. <©=1087.]
    On Motion for Rehearing.
    2. Weapons <@=317 — Carrying Pistol — Place.
    The evidence, not showing defendant was off the premises on which he lives, does not authorize a conviction of unlawfully carrying a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <©=»17.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Johnie Sparks was convicted, and appeals.
    Reversed and remanded.
    Ralph P. Mathis, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 30 days’ confinement in the county jail.

The Assistant Attorney General moves to dismiss the appeal, there being no recognizance in the record, and it not affirmatively appearing by the record that appellant is in jail. The record must disclose that a recognizance has been given, or that the appellant is in jail and has been continuously confined therein, to confer jurisdiction on this court. McHenry v. State, 42 Tex. Cr. R. 469, 60 S. W. 880; Harris v. State, 2 Tex. App. 134; Brinson v. State, 160 S. W. 776, and cases collated under article 918 of Vernon’s Ann. Code Cr. Proc.

The appeal is dismissed.

DAVIDSON, J., not present at consultation.

On Motion for Rehearing.

HARPER, J.

On a former day of this term this case was dismissed because the record contained no recognizance, and did not affirmatively show that appellant was confined in jail. Attached to the motion for reinstatement is the certificate of the clerk to an order, omitted from the original transcript, showing that appellant failed to give recognizance and was committed to and confined in jail. Therefore the cause is reinstated, and the order of dismissal set aside.

It is shown beyond question that appellant had the pistol on the occasion in question and fired it off. His defense is that it was Christmas time, and he did not know it was an offense to shoot the pistol; that he never got off the premises on which he was living. The state, by its evidence, does not make it clear that appellant was off the premises on which he was residing. On another trial, if this be true, this fact should be shown, when the testimony would sustain a conviction for unlawfully carrying a pistol, for the state’s case is that he was not “celebrating,” but shooting for a different reason. However, as the evidence does not show that appellant was off the premises on which he was living, the judgment will be reversed, and the cause remanded. Even though appellant was guilty of an offense in shooting off the pistol, he would not be guilty of unlawfully carrying a pistol if he did not carry it off the premises on which he was living.

The judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    ARIOLA et al. v. STATE.
    (No. 3940.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Larceny <©=355 — Sufficiency of Evidence.
    Evidence on a prosecution for theft of a goat held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. <®=355.]
    2. Criminal Law <©=3519 — Evidence—Statement of Accused.
    An incriminating statement of accused, made when he was neither under arrest nor believed himself to he, but when the owner of the stolen property woke him up, is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. <©=3 519.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Andrew Ariola and another were convicted, and appeal.
    Affirmed.
    Beeman Strong, of Nacogdoches, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were convicted of the theft of a goat with the lowest punishment assessed.

The main contention is that the evidence is insufficient to sustain the verdict. We have carefully read and studied the testimony. It is somewhat voluminous for this character of case. We see no necessity of detailing it. The evidence was amply sufficient to show: That the alleged owner, Mo-iandes, had a small number of goats, which ranged around and about his premises; that one of liis nanny goats came up to his house alone, and by her actions he concluded something was wrong with his goats. He thereupon proceeded to hunt for them. In doing so, some distance from his house he found their tracks where they had been run, and the tracks of men and boys following, running them. That he finally tracked them from the tracks of the one goat and the men and boys showing they had evidently got one and held and drove it between them some distance across fences until he found where it had been killed in the field of one of appellants. He there found only evidence of the slaughter and the entrails on the ground. By hunting around he found the head some distance from where the animal was slaughtered in a thicket. He swore positively that he recognized the head of that billy goat as his, and could not be shaken from his testimony to that effect. He further testified that he tracked and found his herd of goats back of his field, and that this billy goat, which was the only billy goat he had, was not with them. He sent for the sheriff, who came the next day, and he also tracked the goats and men and boys, as he had done. Mr. Spradley, the sheriff, fully corroborated Holandés about the tracks of the goats running, the men following, where they had evidently caught one, and taken it from there to whore it was slaughtered in one of the appellant’s field. There are many facts and circumstances unnecessary to detail that corroborate Holandés and show that it was his goat they had killed.

Mr. Spradley testified that, after he got on the tracks, he sent Holandés back for bis horse, and he followed up these tracks, and testified positively that he measured one of them, and it corresponded with the appellant Manchaea’s tracks; that he found Manchaca in a cotton pen asleep, and, after measuring his shoe while asleep, either woke him, or Manchaca himself awoke. He then tells of the conversation he had with Manchaca and Manehaca’s admission, in effect, of the theft. It is unnecessary to detail Mr. Spradley’s testimony on this point.

The appellants’ contention was that they were in the woods, and their dogs got after some goats and considerably wounded one of them, and that they got that goat after the dogs had thus wounded it, and, coming to the conclusion that it would die from the wounds, they thereupon killed, slaughtered, took it to the house, and ate it. They claimed that they believed and thought it was the property of Bill Itamos, a brother-in-law of the appellant Ariola; that they did not intend to steal it, but intended to pay Ramos for it. Each side introduced more or less testimony tending to establish their respective contentions.

It was shown that some two or three other parties in the same general neighborhood had a herd of goats, including Ramos. Each of them had pastures in which they tried to keep their goats. Holandés had no pasture, and his ran out in the open. Holandés is the only one of all the owners of goats in that territory who missed and could not find his billy goat. None of the other owners of goats are shown to have lost or missed any goat. The facts tend to show that neither of them had lost or missed any of their goats.

The court gave a very full charge submitting every issue in appellants’ favor which was raised by the testimony. The jury believed the state’s side and disbelieved that of appellants. We think it clear that the evidence was sufficient to sustain the verdict, and we would not be authorized to set it aside.

The only other question necessary to notice is appellants’ contention that Mancha-ca’s admission or statement to Mr. Spradley was inadmissible because he was under arrest at .the time, or believed he was under arrest. The court in qualifying his bill refers to the statement of facts on the question. We have carefully read it, and, in our opinion, it clearly shows that Manchaca was not under arrest at the time, and there is no testimony showing that he believed himself under arrest. Under all the authorities, the court’s action in admitting Mr. Spradley’s testimony was correct. Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 592; Elsworth v. State, 54 Tex. Cr. R. 38, 111 S. W. 963.; Craig v. State, 30 Tex. App. 619, 18 S. W. 297; Hiles v. State, 73 Tex. Cr. R. 22, 163 S. W. 717; Rice v. State, 179 S. W. 876. It is unnecessary to cite the many other authorities to the same effect.

Tbe judgment is affirmed.
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author: HARPER, J.

text:
    McALISTER v. STATE.
    (No. 3952.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Criminal Law <S=o372 — Evidence or Other Offenses — Sales of Liquor.
    Witness having testified to purchase of liquor from defendant, and on cross-examination that he had gone to defendant’s house, and defendant’s wife delivered the liquor to him, and he afterwards paid defendant for it, he may on redirect testify to it having been customary for him to make purchases from defendant this way, as showing defendant’s system of making sales and delivery.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dee. Dig. 372.]
    2. Criminal Law <§=»S0 — Principals—Misdemeanors.
    In misdemeanors all parties connected either as &n accomplice or principal may be prosecuted and convicted as principals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111, 1384; Dec. Dig. <®^80.]
    Appeal from Gregg County Court; J. H. McHaney, Judge.

      Virge McAlister was convicted, and ap*-peals.
    Affirmed.
    Martin & Nelson, of Longview, for appellant. O. O. McDonald, Asst. Atty. Gen., for tiie State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

The only bill of exceptions in the record complains that the court erred in permitting the state’s witness Turner to testify that prior to the day of the alleged sale he had purchased whisky from appellant. The general rule is, as contended by appellant, that when the state has proven By its witness a sale to him on the day alleged in the indictment, it cannot prove that additional sales had also Been made to him on dates prior to that time. But when, as in this case, after the witness had testified to a purchase of whisky from appellant, the defendant on cross-examination developed the fact that the witness had gone to appellant’s house and appellant’s wife had delivered him the whisky, he subsequently paying appellant for it, it was permissible for the state to show by the witness on redirect examination that it was customary for him to make purchases of appellant in this way. In approving the hill the court states:

“The foregoing bill of exceptions, examined and approved with the following explanation and qualifications, to wit: The state’s witness Turner had testified that on June 13, 1915, he had bought two bottles of whisky from the defendant ; that he went' down to defendant’s house in the morning and defendant’s wife delivered one of the bottles to him; that later in the afternoon he went back and got the other bottle; that defendant was not there and did not in person deliver either bottle to him; that he had previously had an agreement with the defendant that he could get whisky at any time and that defendant’s wife would make the deliveries ; that on the next night, June 14th, witness paid the defendant, in person, $2 for the two bottles (pints) that he had gotten on Sunday before; whereupon the court over objection of defendant allowed the state to ask the witness if he previously had gotten other whisky from defendant in the same manner, the court being of opinion that it was legitimate to explain the manner of delivery of the whisky and as showing the system employed by defendant in making sales of whiskey and delivery thereof.”

As thus qualified, the bill presents no error. Holland v. State, 51 Tex. Cr. R. 142, 101 S. W. 1005; Carnes v. State, 51 Tex. Cr. R. 437, 103 S. W. 403 ; Fitze v. State, 85 S. W. 1156; Hollar v. State, 73 S. W. 962; Gorman v. State, 52 Tex. Cr. R. 327, 106 S. W. 384.

This is the only bill of exceptions in the record, and no exceptions were reserved to the charge, and no special charges requested. However, in the motion for a new trial it is contended that the court erred in instructing the jury that if appellant made a sale, acting alone or in connection with Ms wife, he would be guilty. In misdemeanors all parties connected with a violation either as accomplice or principal to a crime may be prosecuted as a principal offender and convicted as such. As said in Houston v. State, 13 Tex. App. 599:

“In misdemeanor cases if one advised another, or acts through an agent, whether present or not, or whether acting with those actually engaged in the commission of the offense or not, he is a principal and can be prosecuted and convicted as such.”

See, also, Caudle v. State, 74 S. W. 545; Moncla v. State, 70 S. W. 548; Kaufman v. State, 38 S. W. 771; Beuchert v. State, 37 Tex. Cr. R. 505, 40 S. W. 278; Hawkins v. State, 51 Tex. Cr. R. 37, 100 S. W. 956 ; Lott v. State, 58 Tex. Cr. R. 604, 127 S. W. 191.

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


author: HARPER, J. DAVIDSON, J.

text:
    BADER v. STATE.
    (No. 3767.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1.Arrest <§=>63 — Necessity of .Warrant.
    Code Cr. Proe. 1911, art. 262, authorizing an officer, without warrant, to pursue and arrest, where it is shown to him by satisfactory proof that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, applies where an officer, being informed as to defendant’s attempt to pass a forged instrument, goes with him to investigate the charge, and, while the investigation is going on, defendant flees.
    [Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 145-156; Dec. Dig. <®=>63.]
    2.Criminal Law <⅞=»577 — Trial—Postponement — Time for Preparation.
    Code Cr. Proe. 1911, art. 557, permitting arraignment two days after service of indictment, and the case having been set for trial seven days after the indictment and the assignment of counsel for defendant, it cannot be said that it was error to refuse the motion, made when the case was called for trial, for a postponement to enable additional counsel, who had been employed two days before, to prepare for trial; the witnesses and the evidence stated in the motion to be desired by him having been obtained.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1305, 1506; Dec. Dig, <°x=>
    3.Homicide <⅜^300 — Self-Defense—Excessive Force in Aee'est.
    The issue of using greater force than necessary to effectuate an arrest is not raised, where defendant, with his revolver, drove back one of the officers pursuing him, and had his i revolver ready for instant use, and used it with deadly effect when the other officer overtook him.
    Líüu. jn ote. — nor other eases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <§=>300.]
    4.Homicide <§=>300 — Self-Defense — Instructions.
    That, if defendant was resisting arrest, the officer would have the right to kill him, is not intimated by the charge in homicide that, if defendant did not resist the officer, but was merely attempting to escape arrest, the officer would have no right to kill defendant to prevent his arrest, and, if said officer first drew his pistol and shot at defendant to kill him to prevent his escape, defendant had the right to defend himself from such attack, and, if in doing so he killed the officer, he would be justified.
    [Ed. Note. — Eor other casos, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <§=>300.)
    5. Homicide <§=>300 — Instructions — Applicability to Evidence.
    Defendant in homicide cannot complain that an instruction did not state what right he had if it appeared to him that deceased was about to inflict on him serious bodily harm, where defendant fired the fatal shot after deceased had thrown away his pistol and called to defendant not to shoot any more; the issue not arising.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <§=>300.)
    6. Homicide <§=>174 — Fli&iit—Explanation.
    There was no error in excluding as evidence to explain defendant’s flight, occurring immediately after he shot deceased, testimony of a subsequent gathering of men to pursue him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 850-371; Dec. Dig. <§=>174.)
    Davidson, J., dissenting.
    Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    F. W. Bader, alias W. F. Bader, alias Will Bader, alias H. S. McDonald, was convicted,
    and appeals.
    Affirmed.
    T. S. Alexander and Matthews & Browning, all of Lampasas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 50 years’ confinement in the state penitentiary.

J. J. Connell was constable of Lometa precinct, in Lampasas county. Hugh Supple was his deputy. The Lometa Cedar Company had a number of men engaged in chopping cedar near Lometa, and appellant had been in the employ of the company. H. M. Levison was manager of the cedar company, and paid them on what was termed a “chopper’s ticket” issued by the superintendent when the cedar one had cut was checked. On the morning of the 7th of last April appellant presented to Mir. Levison a “chopper’s ticket” for $34.75, payable to H. S. McDonald, purporting to have been signed by Newel Graves. It is conclusively shown by this record that the ticket was a forgery. When appellant presented the ticket to Mr. Levison, he represented that his name was H. S. McDonald and the ticket had been issued to him for timber cut. Mr. Levison, having his suspicions aroused, investigated and ascertained that the ticket was a forgery, and hunted up appellant and secured back the cheek; appellant having failed to cash it, although he had made several efforts to do so. The constable, C'onnell, and his deputy, being made aware of these facts, went with appellant to the office of Mr. Levison to investigate the matter and ascertain if the check was really forged. Appellant did not go in the office, but stood just outside while Connell was in the office making the investigation. The record would disclose that appellant was not over 10 or 12 feet from Connell, and could, and probably did, hear the conversation going on; for, when the conversation had reached thfe point where it would become evident that the officers were being informed of facts that would show the ticket was a forgery, and he had passed it, assuming the name of H. S. McDonald, appellant fled. He was pursued by Supple, who was also on the outside, and Supple fired in the air to stop appellant. Appellant stopped, but when he turned it was with a six-shooter in his hand, and he forced Supple to abandon the pursuit and go back. Connell, being made aware of the flight, got on his horse and pursued appellant; Supple informing him that appellant was armed. The above facts may be said to be undisputed; the conflict in the testimony appearing in that portion relating to the final encounter.

The testimony of H. G. Wadlington and others show conclusively that appellant knew Connell was an officer and constable of the precinct. He also knew that he was guilty of passing or attempting to pass a forged instrument, if, in fact, not guilty of forging the ticket. There can be no question in this case but that appellant knew the officers were attempting to arrest him, and for what crime they sought his arrest, and, further, that he willfully and intentionally resisted arrest. The officers had no warrant, and appellant insists the officers had no right to make an arrest without a warrant, or at least the question was raised by the evidence that the officers had time to procure a warrant, and therefore should not have attempted to arrest without procuring a warrant. Article 262 of the Code of Criminal Procedure provides that:

“Where it is shown by satisfactory proof * * ⅜ tliat a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the person accused.”

If the facts of any case ever brought it within the provisions of this article of the-Code, this case is brought within its provisions. The constable did not arrest appellant upon being informed of the facts, but goes with him to Mr.. Levison to make an investigation, evidencing a desire not to unduly harass or annoy appellant by an arrest, if the facts did not justify an arrest, or if it should appear that appellant was acting in good faith in the premises. When the officer gets 10 or 12 feet from appellant, and is investigating the charge against appellant brought to his attention, appellant flees. Under such circumstances we think Constable Connell not only had the legal right to pursue and arrest appellant, but he would have been recreant to Ms duty as an officer if lie bad not done so. Hill v. State, 37 Tex. Cr. R. 416, 35 S. W. 660.

When tbe case whs called for trial, appellant moved to postpone or continue the case, that his attorneys, who had been employed 'two days prior thereto, would have time to properly prepare for trial. If they were the only attorneys in the case, there might be merit in this contention, but the record before us discloses that, when appellant was indicted, he was brought into court on the 12th of April, and the cause set for April 19th. On, the 12th, the court being informed that appellant had no counsel, the court appointed Mr. T. S. Alexander, an attorney of the Lampasas bar, to represent appellant, and from the record before us we do not think he was lax in the performance of his duties. Appellant in the motion also stated that he desired the hat obtained by the officers when he was arrested, as it was the hat he was wearing on the day Connell was shot; he contending that the hat would show Connell shot a hole through his hat. He also said, in addition to the other witnesses in attendance on court, he desired A. R. Mace, sheriff of Lampasas county, Hugh Mailer, sheriff of San Saba county, Sheriff Perkins of Runnels county, and James Flint, also of Runnels county. The attendance of all these witnesses was secured, and the hat also obtained and was introduced in evidence. The statutes of our state (article 557) give only two days after copy of indictment has been served in which to prepare for trial, and, if he desires more time than this, he must state reasons why it is necessary that he be given more time in his motion for postponement. We have carefully considered this motion, in the light of the evidence adduced on the trial, and we would not feel authorized to hold that the court erred in overruling the motion. Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115; Conway v. State, 53 Tex. Cr. R. 216, 108 S. W. 1185.

In bill of exceptions 'No. 2 the entire charge of the court is copied, together with appellant’s exceptions to the charge. As the court amended his charge so as to conform to exceptions Nos. 1 and 2, these should have been omitted from the bill of exceptions. The third exception relates to that portion of the charge in which the court instructed the jury that a peace officer who is given information by a credible person that a felony has been committed, and the offender is about to escape, may arrest without warrant, and it is the duty of the officer to do so, and says the converse of this proposition should also have been given in charge. We think the converse of the proposition was fully given as applicable to the evidence in this case. That appellant was guilty of a felony is made plain by this record. That the officer had been so informed is also made manifest It is also proven beyond dispute that appellant, when he ascertained that the officer was being made aware of these facts, fled. It was the duty of the officer to pursue and arrest him without warrant; for there was no time to secure a warrant. If the officer had undertaken to secure a warrant, at the rate appellant was traveling, he could and would have made his escape, as he subsequently did anyway. Now, the main conflict in the testimony is as to who fired the first shot, appellant or the deceased. But all the witnesses show that Connell was a one-armed man, and could not and did not draw a pistol until his horse was stopped, and that prior to this time appellant had drawn his pistol, and as Connell got off of his horse he was advancing on Connell with a pistol drawn, and we think the court’s charge in presenting the converse of the above proposition, if anything, presented it more favorably than appellant was entitled to; for the court instructed the jury, if they believed Connell fired the first shot, to acquit appellant. The court, at the instance of appellant, gave the following special charge in addition to his main charge:

“You are charged that, if you believe from the evidence that the defendant attempted to escape and evade arrest by Hugh Supple, deputy constable of Lampasas county, and that the said Supple made an attack on the defendant from which it appeared to the defendant, viewed from his standpoint, that the said Supple was about to kill him or do him serious bodily harm, and that the defendant continued his retreat in attempting to evade arrest, and was pursued by said Supple and others, and that in a short time thereafter J. J. Connell pursuing the defendant and intercepting him and from the acts and demonstrations, if any, of the said Connell as they appeared to the defendant at the time, viewed from his standpoint, that the said Con-nell was continuing the attack made upon him by the said Supple, and was about to inflict upon him death or serious bodily injury, then you are instructed that the defendant would have the right to shoot in his own defense and to kill the said J. J. Connell.”

There is no question of greater force being used, than was necessary in this case. When Supple pursued appellant, he drove Supple back at the point of a pistol. When Connell overtook him, he had his pistol ready for instant use, and used it; therefore the issue of resorting to greater force than was necessary to effectuate the arrest does not arise in the case, and tMs exception to the charge presents no error. -

The following paragraph of the charge of the court was excepted to on the grounds named below:

“If, however, the defendant did not resist the said J. J. Connell, but was merely attempting to escape or evade arrest, then the said Connell would have had no right to kill the defendant to prevent his escape, and, if you should find that the deceased first drew his pistol and shot at the defendant to kill him in order to prevent his escape, then you are instructed that the defendant had the right to defend himself from such attack by the said J. J. Connell, and, if in defending himself from such an assault he killed the said Connell, he would be justified in so doing, and you should acquit him.”

The first insistence is that the charge intimates to the jury that, if appellant was resisting arrest, Connell would have the right to kill him. The charge is subject to no such criticism. The next criticism is that the charge limits the right of self-defense, in that it only justifies him if Connell shot at him to kill him, and “does not tell the jury what right the defendant had if it appeared to him that deceased was about to inflict on him serious bodily injury.” In some character of eases this exception might be well taken. But the evidence, and all the evidence, shows that, whoever fired the first shot, appellant and deceased advanced towards each other continuing to shoot with deadly weapons until Connell had emptied his,pistol; that then it was, when Connell had thrown his pistol away and called to appellant not to shoot any more, that appellant fired the fatal shot. Connell was struck by only one bullet; this ball passing through the lower part of his heart. The doctor says such a shot produces instant death. In such a case the issue of inflicting serious bodily injury, and not to kill, does not arise, and the criticism is without merit under the evidence in this case. If appellant had objected to this paragraph of the charge on the ground that it shifted the burden of proof, there might and would be merit in it, if the court had not given the special charge requested by appellant curing such error. •

The above are all the exceptions reserved to the charge of the court, and the special charges requested and refused were fully covered by the court’s charge and special charge given, in so far as they presented the law of this case.

The only other exception in the record is that the court erred in not permitting appellant to prove by Sheriff Mace that, when ne reached Lometa (after the homicide), there was great public excitement and a great many armed men hunting for appellant; counsel stating that they expected the answer to such questions to explain the flight of defendant. As it is mani: test from the record- that appellant had already fled before the sheriff arrived at Lo-meta, and had fled immediately upon the killing of Connell before any’ citizens had time to gather and begin a search, this action of the court presents no error. The -court, in approving the bill, says:

“The defendant had offered no testimony to show why he fled from Lometa after shooting deceased; he not testifying in his own behalf. It was not shown that the defendant knew either of the feeling at Lometa aroused by his .acts, or that armed men were hunting him. However, the sheriff, Albert Mace did testify that he and a large number of armed men were hunting for the defendant in the vicinity of Lometa.” «

We have carefully reviewed each bill of exceptions and each ground of the motion .for a new trial, and none of them present any matter which would call for a reversal of this case.

The judgment is affirmed.

. DAVIDSON, J., dissents.

DAVIDSON, J.

(dissenting). When the opinion was handed down, I could not agree with the affirmance. I do not purpose here to enter into a lengthy discussion of the case. In the first place, I believe the court should have granted the continuance or delay of the trial in order that the attorneys might inform themselves of the case as a necessary step to enable them to defend their client. I need not make any further statement than was made by Judge HARPER in the opinion affirming. Where the Constitution guarantees the right to an accused person to be heard, by himself or his counsel, it evidently means ample time for preparation to try the case on the law and the facts. Messrs. Matthews & Browning were employed in the case to assist Mr. Alexander, who had been appointed by the court. Mr. Alexander had been busy, and had not practiced criminal law to any extent. Messrs. Matthews & Browning had been employed just a day or two before the case was to be tried, and had not time to look into the case and examine into it and see the witnesses and find out exactly what the case was. It could have injured the state in no way to have postponed the case a few days that these gentlemen might look into the case and see that their client had a fair trial such as the law and facts would indicate or guarantee. The fact that they may have had two days in which to prepare and file pleadings as authorized by the statute does not meet this question, and, in fact, in my judgment, has but little or no bearing upon it. The accused is entitled to the two days’ service and copy of indictment in which to file pleadings and matters of that sort, but that does not pertain to the general preparation of the case for trial before the jury, except as incidental to the main trial. Those are but steps of preparedness in filing pleadings. It does not preclude, nor was it intended to operate upon, the question that defendant ought to be granted sufficient time to understand his case and find out what the facts were so he might prepare the case and properly present it to the court and jury.

The next question is one of considerable importance to the defendant, as the question of manslaughter was very fully and elaborately in the case. The theory of the state was that appellant had forged the document mentioned in the prevailing opinion, and had presented it to the manager of the Lometa Cedar Company in the town of Lometa. This was known to the officers some time before the difficulty came up. They talked to defendant about it, and went around to the office of the head man of this company, and defendant accompanied them. It seems to havé been an hour or more after they ascertained it, and most of this time they were with defendant or about him. The justice of the peace lived within telephone call and close by the little town of Lometa, where these matters occurred. He could have been called up by phone and gotten to town in 15 minutes or less time. It seems they had an hour or more in which to prepare affidavits or affidavit as a basis for warrant of arrest. This was not done or attempted to be done. The justice of the peace was not even notified. Hr. Connell, the deceased, went into the house where the manager of the Cedar Company was and talked with him about the matter. Supple, another officer, was on the outside, as was defendant, standing somewhere in the neighborhood of the house, and while standing there appellant walked away. Supple drew his pistol, and he says fired up in the air to scare appellant. There is nothing to indicate appellant knew he was shooting in the air; for his back was to him as he was walking away. He reached for his pistol and told Supple to stop, not to do that, or he would kill him, and continued walking away, perhaps with the intention of escaping, and we might be warranted in concluding such was his purpose. Upon hearing the shot, Connell, the constable, came out, Supple being his deputy. He instructed Supple to follow the defendant while he (Connell) would head him off. Connell was a one-armed man, and jumped on his horse and undertook to get ahead of appellant, and succeeded. The shooting began between them with the result that Connell was killed.

The state’s theory is that appellant fired the first shot. Defendant’s theory is that Connell fired the first shot. Inasmuch as the jury and this court in affirming the judgment took the view of the state, it is unnecessary to discuss that phase of it. The defendant’s theory along this line was about this, and he introduced witnesses to prove it: That as Connell approached him horseback he (Con-nell) had his pistol in his hand, and one or more of the witnesses swear that Connell fired first, and that appellant returned the fire. One or two witnesses testified something was said between them, but they did not hear it. If there was anything said between them, it is not detailed in the testimony, because it was not heard by any of the witnesses. The details of the fight and the shots and all that occurred between them at the time I deem unnecessary for what I care to state. Suffice it to say there was a sharp issue as to who fired the first shot. There is testimony enough, had the jury believed it, and from witnesses' who seem to be unim-peached in any way, that Connell did fire the first shot.

This brings up sharply the question of illegal arrest. If Connell had the time to have had the presence of the justice of the peace, or gone to his house a mile or so from town and made affidavit and se'cured a warrant for his arrest, then he had no right to make the arrest without a warrant. He made no attempt to file affidavit or secure one. All the efforts he made are based upon the idea that, as the defendant had forged the instrument or was passing the instrument, he had .the right to arrest him, even though he had time to secure a warrant. This is not the law. He made no attempt to secure a warrant. Under those circumstances the question of illegal arrest was raised from that viewpoint, and that would predicate the basis, for manslaughter. But another phase is: If Connell followed the defendant and became the aggressor and fired the first shot, then appellant had the right to resist, even to taking the life of Connell, clearly and unequivocally, under the law, both statutory and the decisions. Mr. Connell had no right to shoot at him until appellant had resisted in such manner as to justify Connell in shooting. Another phase of it is this: That, although he may have had the authority and right, legally speaking, to have arrested appellant without a warrant, yet the law is plain and unequivocal in this state that, where the right of arrest exists in the officer, and he undertakes to do it in an illegal, harsh, or arbitrary manner not justified or warranted by law, he becomes the aggressor, and not the person he is undertaking to arrest. An officer has no right to arrest in an unwarranted, illegal, or harsh manner. Another proposition in this connection is: So far as I recall the record, Mr. Connell never even made a demand on appellant to surrender, and from either the defendant’s or state’s standpoint he had no right to shoot until he had made that demand and the appellant had forcibly resisted. Of course, the other man may have been the aggressor and fired before Connell had time to make that demand of the appellant, but the state’s side of it was given fully to the jury. I am only speaking now in this connection of legal rights under those circumstances that should have been stated to the jury in the charge of the court as a basis for their finding, as well as under the facts. I do not deem it necessary to follow this matter or cite authorities. These questions are settled by the decisions in the history not only of Texas jurisprudence, but, so far as I am aware, wherever our Anglo-Saxon jurisprudence and our constitutional provisions and statutory requirements are in existence.

There are some other matters, but I do not care to follow this matter. Briefly stated, I file these as some of my reasons for not agreeing with the affirmance of the judgment.
      other cases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes

      other rsases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HABPEB, J.

text:
    RIOS v. STATE.
    (No. 3954.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.)
    1. Criminal Law <§=3996 — Sentence—Statute.
    Under Code Cr. Proc. 1911, art. 859, providing that where there is a failure to enter judgment during the term, the judgment may be entered at any succeeding term of the court, the district court at its next term after the dismissal of defendant’s appeal, and upon notice by the district attorney to defendant of an application to correct error in the judgment entry, might correct the clerk’s insertion of another name where defendant’s name was intended to appear.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1483, 2529, 2544-2546; Dec. Dig. <§=996.]
    2. Criminal Law <§=1014-Appeal — Entry op Judgment.
    In such ease the defendant might appeal to the Court of Criminal Appeals, whereupon its jurisdiction would attach and it would pass on the merits of the case.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2571; Dec. Dig. <§= 1014.]
    3. Indictment and Inpoemation <§=159 — Amen dment — N ame — Statutes.
    Under Code Cr. Proc. 1911, art. 560, providing that, if defendant suggests that his name differs from that stated in the indictment, it shall be noted upon the minutes and the indictment corrected by inserting the defendant’s name as suggested, the district court, on defendant’s motion suggesting that'his name was Jeorge Bios, and not Jeorge Beyes, as shown by the indictment, properly refused to abate the indictment, which had been served on defendant more than two days before his arraignment, and properly made a notation on its minutes and a correction of the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514;- Dec. Dig. <5=159.]
    4. Criminal Law <§=406 — Voluntary Statement — Warning—Statute.
    Under Code Cr. Proc. 1911, art. 294, providing that before the examining trial defendant shall be informed of his right to make a statement relative to his accusations and told that he need not make any statement but that any statement made might be used in evidence against him, and article 295, permitting him to make a voluntary statement before the examination of any witnesses, to be reduced to writing and signed by him, his statement on his examination after warning, read over to him and signed by him, need not on its face show that he was warned and that it complied with the statute, as that may be orally shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. <§=406.]
    5. Criminal Law <§=1111 — Appeal—Voluntary Statement — Interpreter — Bill op Exceptions.
    The objection that the justice taking defendant’s voluntary statement on his examining trial was not sworn to act as an interpreter will not be considered where the bill of exceptions does not show that the statement was made in the Spanish language and translated by the justice into English, but does show that accused mado such statement in English.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. <§= 1111.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    Jeorge Bios was convicted of murder and he appeals.
    Affirmed.
    John A. Jones and A. L. Neal, both of Sin-ton, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HABPEB, J.

Appellant was convicted of murder, and the death penalty assessed against him.

On the former appeal in this case, reported in 174 S. W. 1050, the appeal was dismissed because the.notice of appeal was not entered in the minutes at the term of court at which appellant was tried. The opinion also shows that the judgment entry was incorrect, and the court had, in vacation, entered. an order correcting the judgment entry. The court held that this could not be done in vacation.

After the case was dismissed the state, by its district attorney, at the next term of the district court of San Patricio county, had appellant and his counsel served with notice of an application to correct the errors in the judgment entry, it being made to appear the clerk by mistake had inserted the name Clarence Lenier where appellant’s name (Jeorge Bios) should appear and was intended to appear. Appellant insists that the court was without authority, even at the next term, to make this correction, and cites us to the case of Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982, wherein it was held that under the law as it then existed the trial court had no authority to enter a judgment nunc pro tune while the case was pending before this court on appeal, but in that case nor in any other case has it ever been held, after the appeal has been dismissed by this court, that the trial court, in term time, would not have authority to amend its judgments or enter a proper judgment when there had been no judgment entered. On the contrary, it has been uniformly held that the trial court had authority, after the appeal had been dismissed by this court, to enter a proper judgment in the case upon notice to the opposite party. Article 859 of the Code of Criminal Procedure provides that where from any cause whatever there is a failure to enter judgment during the term, the judgment may be entered at any succeeding term of the court. Madison v. State, 17 Tex. App. 479; Mapes v. State, 13 Tex. App. 85; Vestal v. State, 3 Tex. App. 648. As said in the Madison Case, supra:

“Under this provision it has been held that if an appeal has been taken, but no final judgment was entered, and the appeal is dismissed, it is the proper practice to cause the final judgment to be entered at a subsequent term in the court a quo, nunc pro tunc, and that from this judgment the defendant may again prosecute appeal” —citing Smith v. State, 1 Tex. App. 408, and other cases.

The court acted properly in permitting a correct judgment to be entered, in term time, after appellant had been served with notice that proper application had been filed asking that such entry be made, and from this judgment entry he had the right then and there to give notice of appeal to this court; and, as the record discloses such notice was given, the jurisdiction of this court has attached, and we will pass on the merits of the case.

The indictment in this case charged appellant’s name to be Jeorge Reyes. When the case was called for trial appellant filed a written motion suggesting that his true name was Jeorge Rios, and prayed the court to abate the indictment. When this plea was filed the court refused to abate the indictment, but correctly ordered that the proper notation be made upon the minutes of the court and the indictment corrected by inserting the name of defendant, as suggested in the motion. Article 560, O. O. P.; Peters v. State, 154 S. W. 563. The indictment having been served on defendant more than two days before his arraignment, it was not necessary to postpone the case for another two days when he suggested his right name to the court.

The only other bill of exceptions in the record complains the court erred in admitting the written statement of defendant, made by him at the time of the holding of the examining trial. The objections urged to said statement were: First, that the statement did not show that defendant had been warned he did not have to make any statement; second, that the statement did not show he was told if he made any statement that it could be used in evidence against him on the trial of the offense; third, that said statement was signed by his mark, and that the law requires that the statement be signed by some other person than a peace officer; and, fourth, that the person taking said statement was not sworn to act as interpreter, as the law directs.

The first three objections would be good if the statement had been an extrajudicial confession. But the statement was not what is termed in law a confession, but a voluntary statement made by accused in court at the examining trial. Article 810, O. O. P., governs the taking of confessions out of court, but this article specifically provides it shall have no application “to a voluntary statement of an accused, taken before an examining court in accordance with law.” Therefore we are relegated to articles 294 and 295 of the Code of Criminal Procedure for the rules governing the taking of a voluntary statement at the time of holding an examining trial. Mr. S. J. Bewis testified he was a justice of the peace, and held the examining trial of appellant; that he informed appellant of his right to make a statement, and that if he made one it must be voluntarily made, and that if he made it it could be used in evidence against him on the trial of the case of which he was then charged; that after having so warned appellant, appellant made a statement and he reduced it to writing, and after reducing it to writing he read it over to appellant and appellant signed it in his presence. These two articles of the statute were construed by this court in -tho case of Guy v. State, 9 Tex. App. 161, in a well-considered opinion written by Judge White, and it was held that it was not necessary that the statement on its face show that appellant had been warned, but this might be orally shown, as well as the fact that all requirements of the statute had been complied with in taking the statement. The rule announced in that case has always been followed in this court, and ⅛ a correct construction of articles 294 and 295. If the written statement had been a confession taken out of court, the first three objections might be tenable.

As to the fourth objection, there is nothing in the statement as introduced, nor in the bill of exceptions, except the objection made to show that the statement was made by appellant in the Spanish language, and by the justice of the peace translated into English. In so far as this bill of exceptions discloses, appellant may have made the statement in the English ianguage. If in fact appellant made the statement in the Spanish language, and it was translated by the justice of the peace into English, and then reduced to writing, the bill of exceptions should- disclose that fact. But if that be the ease, as contended by appellant in his brief, certainly this fact should appear in the bill of exceptions or somewhere in the record. We might conjecture that appellant made the statement in the Spanish language by reason of the fact that the record discloses he is a Mexican, and that on the trial of the case he testified through an interpreter, but we cannot resort to conjectures in aid of the allegations of a bill of exceptions. In so far as the bill is concerned, it shows that appellant made the statement, speaking the English language. The confession is in the English language, signed by appellant, and there is nothing to show that it was made in Spanish and translated by the justice of the peace into English. When the justice of tire peace was testifying, he was asked no such question, and such an issue does not appear to have been made on the trial of the case, nor was there any evidence offered that the statement was made by appellant in the Spanish language.

No other question is raised in a way we are authori; ed to review it, and the judgment is affirmed.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    NATIONS et al. v. MILLER et ux.
    (No. 2440.)
    (Supreme Court of Texas.
    March 1, 1916.)
    1. Public Lands <⅞=⅞180 — Public Lands of State — Powers of Commissioner.
    The action of the Commissioner of the General Land Office in forfeiting a purchase of public lands is ex parte and dependent upon the actual existence of the facts constituting a lawful ground of forfeiture and authorizing him to declare it, since he is not invested with judicial powers.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 584; Dec. Dig. <g=»180J
    2. Public Lands ⅞=^173 — Lands of the State — Illegal Forfeiture — Statute.
    Under Rev. St. 1911, arts. 5458, 5459, providing that all persons claiming the right to purchase or lease any public free school lands, etc., which have been or may be sold or leased to any other person, shall bring suit within one year after the award of such sale or lease, and not thereafter, and that, if no suit has been instituted by any person claiming the right to purchase or lease within a year, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease have been complied with, the defense of one to whom public free school land was sold in an action by purchasers after forfeiture declared against him that the forfeiture was illegal, leaving his right to the land unaffected, was not precluded because of his failure to bring suit for the land within a year from the date of the award after the forfeiture against him, and in trespass to fry title by the subsequent purchasers it was error to exclude evidence of the illegality of the forfeiture. ’
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <®=ol73.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by F. P. Miller and wife against J. H. Nations and others. Judgment for plaintiffs was affirmed by the Court of Appeals (146 S. W. 261), and defendants bring error.
    Reversed and remanded.
    T. A. Falvey, Robt. L. Holliday, and Tur-ney & Burges, all of El Paso, for plaintiff in error. John L. Dyer and Peyton F. Edwards, both of El Paso, for defendant in error.
   PHILLIPS, C. J.

The action was one in trespass to try title brought by Miller and his wife to recover certain sections of land from W. P. Paschal and J. H. Nations, a lessee of Paschal, originally public free school land awarded, on June 26, 1906, by the Commissioner of the General Land Office to Paschal, and thereafter, on June 10, 1909, following a forfeiture by the Commissioner of Paschal’s purchase, awarded to Mrs. Miller. Paschal’s purchase of the land was in compliance with the law, and the required payments on his obligation were duly made up to the time of the Commissioner’s forfeiture of his purchase on May 24, 1909, and have since been duly tendered. He was in possession of the land at the time of the institution of the present suit. According to the entry made by the Commissioner at the time the forfeiture of Paschal’s purchase was “for failure to reside on the land as required by law.”

Upon the trial Paschal tendered witnesses to establish that he had continuously resided upon the land from the time of his purchase from the State, but was denied the right to make the proof. A verdict was instructed against him under the view entertained by the trial court that, in virtue of the Act of 1905 (chapter 29, page 35, Acts of 1905), present articles 5458 and 5459, Revised Statutes of 1911, he was concluded in the suit because of his failure to bring an action for the land within one year from the date of the award to Mrs. Miller; this being likewise the view of the Court of Civil Appeals as expressed in its affirmance of the judgment.

The Act of 1905 has been several times considered by this court, but we have not had occasion to determine any case where it was invoked under circumstances similar to those found here. Its provisions are doubtless familiar but we will quote it. It reads:

Art. 5458. “All persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the state university, or either of the state asylums, which have been heretofore, or which may he hereafter, sold or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after the date of the award of such sale or lease, and not thereafter.”
Art. 5459. “If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the foregoing article, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with: provided, that nothing in this and the preceding article shall be construed to affect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

The purpose of the act is clearly stated in Slaughter v. Terrell, 100 Tex. 600, 102 S. W. 399, as follows:

“Under the law as it previously existed, purchasers of school lands were liable to have their titles attacked by third persons who desired to purchase the land, and such persons might call in question the qualification of the purchaser as well as the performance of conditions prescribed by law, for example, that when the purchase was made the purchaser did not actually reside upon the land, or that he did not intend to make it his home, and thus, although the State recognized his right, the purchaser was constantly exposed to such attacks. This rendered such titles uncertain and to remedy that evil the Legislature enacted the law now under consideration, which requires that any person who desires to purchase land theretofore purchased by another shall bring his suit to set aside the former purchase within twelve months of the award of it or he will be barred.”

Paschal’s position in the suit was that the Commissioner’s forfeiture of his purchase was wrongful, and his rights to the land, therefore, not affected by it. If it be true that he had not failed to reside upon the land as the law requires, the forfeiture was unauthorized. The Commissioner of the General Land Office, though an officer charged with high and responsible duties, is not invested with judicial powers; and his authority to forfeit a purchase of public lands is dependent upon the actual existence of the facts which constitute a lawful ground of forfeiture and authorize him to declare it. Smithers v. Lowrance, 100 Tex. 77, 93 N. W. 1064; Savings Bank. v. Dowlearn, 94 Tex. 383, 60 S. W. 754; Bumpass v. McLendon, 45 Tex. Civ. App. 519, 101 S. W. 491; Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S. W. 78. The action of the Commissioner in such eases is ex parte. The purchaser against whom the forfeiture is declared is entitled to a judicial hearing and determination of the question of whether there was any ground for the forfeiture; and of this, a common privilege inhering in every lawful adjudication of property rights, he cannot be deprived.

If there was, in fact, no warrant for the forfeiture of the .sale of the land to Paschal, and the forfeiture was therefore illegal, leaving, as a necessary result, his right to the land unaffected by it, was his defense to this action by the Millers concluded under the Act of 1905 because of a failure to himself bring a suit for the land within a year from the date of the subsequent award to Mrs. Miller? We do not think so. The act was intended to apply, and in terms clearly does apply, to persons “claiming the right to purchase or lease any public free school land,” etc. It does not purport to deal with one, much less bar his rights, who is not claiming any right to purchase as against an adverse claimant or award, but whose right to the land, if he has any claim to it, is unaffected by another award and is that of an established lawful purchaser, already invested with his interest in virtue of a prior valid sale, originally binding upon the State and still subsisting in full force under the law.

If Paschal’s contention in respect to his continuous residence upon the land be true, his rights at the time of the forfeiture of his purchase, the award to Mrs. Miller, and thereafter, as a purchaser under the State’s sale, were not less perfect than at their origin. They could not be destroyed by an illegal forfeiture and a subsequent illegal sale to anyone else. If he had complied with the law in respect to residence upon the land, as he proposed to establish by the testimony he tendered in the suit, he was the lawful purchaser of the land at the time of the award made to Mrs. Miller; and, in such event, that continued to be his status thereafter. • If such is not his status, it is plain that he has no right to the land; but if it is, it is equally plain that Mrs. Miller has no right to it.

He is asserting no other claim in the suit, and it appears has asserted none other to the land. If he is a lawful purchaser because once so recognized by the State and entitled under the law to be still so recognized, as he has the right to establish in Mrs. Miller’s suit, he cannot in our opinion be regarded as “a person claiming the right to purchase,” and the Act of 1905 is therefore without application.

No intimation contrary to this holding is to be found in the opinion delivered in Atchison v. Hanna, 107 Tex. ——174 S. W. 279, or in any other decision by this court touching the scope and effect of the Act of 1905. In Atchison v. Hanna, Hanna’s purchase was illegally forfeited. After such forfeiture the land was awarded to Armstrong who sold to Atchison. Within a year after the award to Armstrong Hanna filed in this court a motion for leave to file a petition for mandamus against the Commissioner of the General Land Office and Armstrong, seeking to have the Armstrong award canceled and himself recognized as a lawful purchaser of the land. On this motion the petition was permitted to be filed. It was afterwards dismissed for want of jurisdiction, caused by the interposition of Armstrong’s answer presenting a question of fact in relation to Hanna’s purchase from the State, which this court, under its jurisdiction, could not determine. It was not held that Hanna was under the necessity of bringing a suit for the land within a year from the date of the award to Armstrong in order to escape the operation of the Act of 1905. Upon this feature of the case it is in the opinion simply declared that inasmuch as the effect of Armstrong’s answer in the mandamus suit was to deprive this court of the authority to determine the issues, Armstrong and Atchison, his vendee, were in no position to say that Hanna had not brought a suit within the contemplation of the Act of 1905.

It is difficult to attribute to the Legislature a purpose to foreclose under the operation of this act the rights of one whom the State has once recognized to be a lawful purchaser of its public land, which, because of his compliance with the law, have never become legally subject to forfeiture but still subsist. The contemplation of such a result as the consequence of such a statute ought, we think, to be very clearly expressed before the statute is held to have such effect. No such intention is revealed in the terms of the Act of 1905, and we are therefore unwilling to give it such construction.

The judgments of the District Court and the honorable Court of Civil Appeals are reversed and the cause is remanded to the District Court.
      <S=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WICHITA FALLS TRACTION CO. v. ADAMS.
    (No. 2439.)
    (Supreme Court of Texas.
    Feb. 23, 1916.)
    1. Trial <©=>203 — Instructions — Necessity.
    In a jury trial, where the case is submitted under a general charge, a party is entitled to an affirmative presentation of an issue raised by the pleading and evidence upon which he relies; this being the distinct office of the special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. <§=>203.]
    2. Theaters and Shows <§=>6 — Amusement Grounds — Care Required.
    In an action against the owner of amusement grounds for injuries to a child while upon a walk which was under the defendant’s control, the measure of defendant’s duty is the ex-erciso of ordinary care to keep the walk in a condition safe for a child of his years.
    [Ed. Note. — For other eases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. <§=>£>.]
    3. Theaters and Shows <§=>6 — Amusement Grounds —Care Required — Condition op Premises.
    The owner of amusement grounds was liable for injuries to a child while on a walk which was under the owner’s control, if through its employés it placed the tank which caused the injury in its position upon the walk, and such an act constituted negligence, or if the tank was placed there by a stranger and the owner failed to exercise ordinary care to discover its presence and either remove it or render it not dangerous, and it is not liable in the absence of either of these conditions.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 6; Dee. Dig. <§=>6.]
    4. Theaters and Shows <§=>6 — Amusement Grounds — Actions—Instructions.
    In an action for injuries to a child by the falling of a tank upon a walk under defendant’s control in amusement grounds, an instruction that, if the tank was not placed there by defendant or its employés, and was placed there without defendant’s knowledge, and it could not, by ordinary care, have ascertained that it had been placed there, defendant was not liable should have been granted; defendant being entitled to an affirmative instruction on that phase of the evidence.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent Dig. § 6; Dec. Dig. <§=>6J
    5. Theaters and Shows <§=>6 — Amusement Grounds — Actions—Instructions.
    In an action for injuries from the falling of a tank upon a walk in amusement grounds, an instruction that, if the jury failed to find that the placing of the tank was negligence on the part of the defendant’s agents and employés, the finding should be for defendant presented the defense that the tank was not placed there by defendant’s agents or employés, and that they could not, by reasonable care, have known that it was placed there, only negatively if at all.
    [Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. <§=>6J
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by Norman Adams against the Wichita Falls Traction Company. From a judgment of the Court of Civil Appeals (146 S. W. 271), affirming a judgment of the district court for plaintiff, defendant brings error.
    Reversed and remanded.
    Huff & Buffington, of Wichita Falls, and C. C. Huff, of Dallas, for plaintiff in error. L. H. Mathis and Jno. O. Kay, both of Wichita Falls, and Hart & Woodward, of Austin, for defendant in error.
   PHILLIPS, C. J.

The action was for the recovery of damages on account of an injury sustained by the plaintiff, Norman Adams, a child, suing by its father. The defendant owned some amusement grounds for the use of the general public out from the city of Wichita Falls,' to which its street car line extended from the city and within which was located a pavilion structure with the lower floor enclosed and a concrete promenade walk or veranda surrounding it. In the lower story, under a contract with the defendant granting him such privilege, George Mater conducted stands for the sale of confectionery, ice cream, soda water, etc. The injury to the plaintiff occurred upon a late Sunday afternoon, and was occasioned by an empty metal liquid gas tank, four or five feet in length, five or six inches in diameter at the end, and weighing about one hundred and fifty pounds, used by Mater in connection with his soda water business, which was standing in an upright position, unsupported, at the outer edge of the walk, and was by the child accidentally toppled over, falling upon and injuring one of his hands.

The negligence charged against the defendant was in its placing the tank, or permitting it to be placed, in this position upon the walk, which, it was claimed, rendered the premises dangerous to children.

An examination of the record does not disclose any direct evidence as to the circumstances under which the tank was placed upon the walk, or as to the person who put it there. There does not appear to have been any direct evidence that any agent or employe of the defendant had actual knowledge before the accident that such was its situation. There was a conflict in the evidence with respect to the length of time it had been standing upon the walk before the accident. According to some of the testimony adduced for the plaintiff it had been in such position for several hours. According to certain testimony adduced for the defendant it had been upon the walk for only a few minutes. Mater testified that the tank and another like it had been taken out of his place of business in the pavilion during the same morning and laid flat upon the ground at a place away from the pavilion and the walk, near the street ear track, for the purpose of being carried back into the city. Estes, a witness for the defendant, testified that thirty minutes before the child was injured, he saw some men and boys playing with the two tanks where they were lying upon the ground at that place; and that the tank which caused the injury could hot have been upon the walk longer than three minutes before the accident occurred. He was an employe of Mater, and, according to his testimony, was upon the walk at the time, engaged in his duties, a short distance from where the tank was standing when the child approached it.

A special charge to the following effect was requested by the defendant and refused by the court:

“If you find and believe from the testimony that the tank described in plaintiff’s petition was placed or caused to be placed by George Mater or his employes at a point outside of the pavilion and its porches, and if you further find and believe from the testimony that said tanks were placed upon the ground at a point near the street car track and away from the first floor of the eollonade pavilion and its porches and away from the place of the accident, and if you further find and believe from the testimony that some one not an employe of George U. Mater or the defendant Traction Company without the knowledge of said Mater or the Traction Company moved the said tank from, the place where it was placed, to the place of the alleged accident, and if you further find and believe from the testimony that the defendant Traction Company its agents and employes did not know that said tank had been moved from tho place where it had been placed to the place of the alleged accident and could not by use of ordinary care and diligence have ascertained within the time said tank was moved, if you find it was moved, that it had been moved, then you are instructed to find for the defendant.”

In a jury trial where the ease is submitted under a general charge of the court, a. party is entitled to an affirmative presentation of an issue raised by the pleading and evidence upon which he relies for the establishment of his cause of action or his defense. For a proper application of the law of the case to the different phases of the evidence as a guide for the jury’s action, he is not remitted to inferences which may be drawn from the charge. Whether plaintiff or defendant, it is his right, upon proper request, to have the issue affirmatively submitted by the court through an appropriate instruction grouping the facts which, if determined in his favor, will, under the law, entitle him to the verdict. This, it may be said, is the distinct office of the special charge under our practice. El Paso & Southwestern Railroad Company v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; St. Louis Southwestern Railway Company v. Hall, 98 Tex. 480, 85 S. W. 7S6; Missouri, Kansas & Texas Railway Company v. McGlamory, 89 Tex. 638, 35 S. W. 1058; Texas Trunk Railway Company v. Ayres, 83 Tex. 268, 18 S. W. 684.

The issue tendered in the case by the plaintiff under his petition was that the defendant either negligently placed the tank upon the walk or negligently permitted it to remain. there. On the theory that the walk was under the defendant’s control, — as to which there seems to have been some dispute, but which fo.r the purpose of this decision we will ignore as a controverted issue, — the measure of its duty to the plaintiff, under the issue as presented, was the exercise of ordinary care to keep the walk in a condition safe for a child of his years. It was therefore liable for the injury if through its employes it placed the tank in its position upon the walk and such an act constituted negligence, or if the tank was placed by a stranger upon the walk in such position and it failed to exercise ordinary care to discover its presence and either remove it or render it not dangerous to children such a's the plaintiff. It is equally true that it was not liable if it neither through its servants placed the tank upon the walk, nor was guilty of negligence in failing to discover its presence upon the walk if it was put there by someone else. If there was any testimony tending to show that a stranger placed the tank upon the walk so shortly before the accident as to present an issue of fact in respect to whether the defendant, in the exercise of ordinary care and diligence, ought to have discovered its presence before the accident, it was entitled to a proper affirmative instruction, if requested, upon that phase of evidence. That there was such testimony, is clear. The special charge refused by the court presented this issue of the defense in a proper form, and ought therefore to have been given, since it was not otherwise affirmatively Submitted to the jury.

In the general charge, after the jury had been directed to find for the plaintiff “if they found from the evidence that the plaintiff was injured by the falling of the tank, upon property under the control of the defendant and upon which it had invited the general public for the purpose of amusement, and that the tank was left by the agents of the defendant in such a place and position as to be dangerous to persons of the plaintiff’s age and intelligence, and that such action on the part of the defendant and its agents and employes constituted negligence,” —in the succeeding paragraph the following appeared:

“On the other hand, if you fail to find that the pavilion where the accident occurred was under the control of the defendant company, or, if you fail to find that the placing of the gas tank or reservoir or the leaving of it at the place where the accident occurred, was negligence on the part of the defendant agents and employes, then you will find for the defendant.”

This was only a negative instruction, however considered. If it dealt at all with the question of whether the placing of the tank upon the walk was the act of a stranger, and, if so, whether it had been upon the walk for such length of time as to have been discovered by the defendant in the exercise by it of ordinary care and diligence, its inclusion of the issue was only to be negatively inferred.

The judgments of the District Court and Court of Civil Appeals are reversed, and the cause is remanded to the District Court.
      <g=>Eor other oases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes