text:
    SINCLAIR v. STATE.
    (No. 3190.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    1. Intoxicating Liquors (§• 236*) — Wrongful Sale — Evidence.
    Positive evidence of a witness that he purchased three pints of whisky’ from defendant and paid him $3 therefor was sufficient to sustain a conviction of violating the prohibition law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dee. Dig. §. 236.*]
    2. Intoxicating Liquors (§ 176*) — 'Wrongful Sale — Defense.
    In a prosecution for wrongful selling of liquor to H. in violation of the prohibition law, evidence that defendant had been bound over to await the action of the grand jury on a complaint charging him with pursuing the occupation of selling intoxicating liquors, and that the state in such proceeding relied on the sale to H. as one of the sales by which it was intended to show that defendant was guilty of pursuing the occupation, furnished no defense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 176.*]
    3. Criminal Law (§ 917*) — New Trial — Continuance — Denial — Absence of Witness.
    Denial of a motion for a continuance for absence of a witness is not ground for a new trial, where the witness attended the trial and testified.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2161, 2162; Dec. Dig. § 917.*]
    Appeal from Red River County Court; Geo. Morrison, Judge.
    'J. T. Sinclair was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the prohibition law, and his punishment assessed at a fine of $50 and 40 days’ imprisonment in the county jail.

Mr. Hollingsworth swears positively that he purchased three pints of whisky from appellant and paid him $3 therefor. Consequently the complaint that the evidence is insufficient to sustain the conviction cannot be sustained.

Appellant insists that as in justice court he was bound over to await the action of the grand jury on a complaint charging him with pursuing the occupation of selling-intoxicating liquors, and that in said' complaint he was charged with selling to Garrison, Riley, Yates, and several other persons, that he should have been permitted to introduce evidence that the sale to Hollingsworth was one of the sales relied on by the state to prove that appellant was guilty of pursuing the occupation, and for this reason this prosecution would not lie. We decided adversely to appellant’s contention in the ease of Robinson v. State, 147 S. W. 245.

As the witness for wliom appellant sought a continuance attended court and testified on the trial of the ease, this ground of the motion presents no error.

The judgment is affirmed. •


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    DE ROSSETT v. STATE.
    (No. 3150.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    On Motion for Rehearing, June 26, 1914.)
    1. Seduction (§ 46) — Coeboboeation oe Peosecuteix — Necessity.
    Under Code Cr. Proc. 1911, art. 789, declaring that, in a prosecution for seduction, the female shall be permitted to testify, but that no conviction shall be had upon her testimony unless it is corroborated by other evidence connecting accused with the offense, the prosecu-trix, in a prosecution for seduction under promise of marriage, denounced by Pen. Code 1911, art. 1447, need be specifically corroborated as to the act -of intercourse or the promise of marriage; corroboration tending to connect accused with the offense being sufficient.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    2. Seduction (J 45) — Coeboboeation oe Peosecuteix — Circumstantial Evidence.
    In a prosecution for seduction under promise of marriage, both the act of intercourse and the promise of marriage may be established by circumstantial evidence.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    3. Criminal Law (§ 811) — Teial—Instruc-tions.
    It is improper for the court to pick out one item of evidence and charge on it alone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    ■ 4. Criminal Law (§ 815) — Trial—Instructions.
    In a prosecution for seduction under promise of marriage, where there was much circumstantial evidence tending to show the promise of marriage, the refusal of an instruction which charged that an unsigned letter, which the pros-ecutrix alone testified was written her by the accused, would not constitute corroboration was properly refused because disregarding all the circumstantial evidence.
    [Ed. Note. — For other cases, Law, Cent, Dig. §§ 1922, 1986; 815.] see Criminal Dec. Dig. §
    5. Seduction (§ 46) — Prosecution — Evidence.
    In a prosecution for seduction under promise of marriage, evidence held sufficient to corroborate prosecutrix and to justify conviction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Ed. De Rossett was convicted of seduction, and he appeals.
    Affirmed.
    J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for seducing Miss Weems, and his punishment assessed at five years in the penitentiary.

The testimony of Miss Weems, if believed and corroborated, clearly made out the offense against the appellant. There were many facts and circumstances, besides some positive testimony corroborating her, tending to connect him with the offense.

Seduction by our statute (article 1447, P. C.) is:

“If any person, by promise to marry, shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, he shall be punished.,” etc.

Article 789, C. C. P., is;

“In prosecutions for seduction * * * the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.”

In the case of Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 714, Judges Ramsey and McCord, then of this court, both delivered very elaborate, able, and exhaustive opinions, which were approved by this court and many times, and in many cases since then, have been cited with approval. In discussing said article 1447, P. C., Judge Ramsey in that case said:

“This statute has been construed, and properly so, to apply only to a woman previously chaste. Therefore, in order to establish the crime of seduction, four things must be shown: First, that the person claimed to be seduced is an unmarried female under the age of 25 years; second, that she is chaste; third, that she submitted to carnal intercourse with the person charged; and fourth, that this intercourse was obtained by promise to marry, upon which the prosecutrix relied. Now, while there are many loose expressions in the books to the effect in substance that the prosecutrix must be corroborated, both in respect to the act of intercourse and the promise of marriage, this is not the law, and never was the law. The statute no more requires corroboration in respect to the act of intercourse or to the promise of marriage than it does in respect to the age of prosecutrix or to her previous chaste character.”

In discussing said article 789, C. C. P., he quoted from Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120, as follows:

“The statute is general that the accomplice must be corroborated by other testimony tending to connect the defendant with the commission of the offense. The statute does not say in what this corroboration shall consist. If the testimony, other than that of the accomplice, should make out a complete offense, it would not be necessary to use the accomplice’s testimony. Hence the law has wisely provided that the corroboration must tend to connect the defendant with the commission of the offense, and to require that every constituent element of the offense as sworn to by the accomplice must be corroborated would be requiring of the state an impossibility.”

He then cited and quoted from many other authorities, including many decisions of this court, clearly establishing the doctrine announced quoted above.

In the opinion of Judge McCord, which was adopted in that case by this court in an opinion by Judge Harper, Judge McCord also clearly and specifically announces the same principles of Judge Ramsey above, and elaborately discussed many authorities clearly so holding, and from all these authorities from this state and the various other states he correctly announces this rule (61 Tex. Cr. R. 282, 134 S. W. 721):

“We deduce from the law that the prosecu-trix is corroborated whenever there are any facts or circumstances that tend to show that the defendant committed the offense, and that, whenever the court attempts to enlarge upon this rule by laying down a rule as to what particular issues of the case shall be corroborated, it is in error.”

Again it is unquestionably the law of this state, uniformly so held in all the decisions passing on the question, as said by Judge Ramsey in the Nash Case, supra (61 Tex. Cr. R. 267, 268, 134 S. W. 713):

“It can no longer be' doubted that it is the law that both the act of intercourse and the promise of marriage can be established by circumstantial evidence. No lawyer can, as I conceive, give any reason why the law of circumstantial evidence should not apply in cases of seduction as well as in cases of murder or theft.”

Again, as said by this court in Curry v. State, 151 S. W. 319 :

“The law is that the testimony of the injured party in cases of this character does not have to be corroborated in each and all of the necessary elements of the offense, and that the corroborative evidence may be slight, and that the requirements of the statute are fulfilled, if there be any corroborating evidence which, of itself, tends to connect the accused with the commission of the offense. Such corroboration only is necessary as is sufficient to satisfy a jury, beyond a reasonable doubt, of the truth of the charge, in connection with the testimony of the accomplice. Nourse v. State, 2 Tex. App. 306; Jones v. State, 4 Tex. App. 531; Tooney v. State, 5 Tex. App. 163; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v State, 61 Tex. Cr. R. 269, 134 S. W. 709; Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Bost v. State, 64 Tex. Cr. R. 464, 144 S. W. 589; Murphy v. State, 143 S. W. 618. * * * This must necessarily be the law and the proper construction of the statute in cases of this character, for acts of intercourse between persons are always as secret and private as can be, and under such circumstances as the parties believe will prevent their detection or even suspicion at the time. Also engagements of young persons to marry are made in private and in secret between them; and very generally, if not entirely, the fact of engagement, for at least some length of time, is kept as privately and secretly between them as can well be. Therefore proof, in the nature of these things, generally cannot be made other than by the testimony of the accomplice, corroborated by such circumstances as to time and place, opportunity, and the course of dealing or treatment between the parties along about the time, * * * and such like matters.”

The court gave a correct charge that Miss Weems was an accomplice and required her testimony to be corroborated in accordance with the statute. The charge given by the court is a standard one and has all the time been held amply sufficient by the decisions of this court.

Appellant made no specific objection to this charge of the court, except in that he requested, and the court refused to give, the following charge:

“Should you find from the evidence that the prosecuting witness, Minerva Weems, testified that she received from the defendant a letter, which has been introduced in evidence before you, and you should further find that no other witness testified that the defendant wrote and mailed said letter, and the state must rely alone upon the testimony of the said Minerva Weems for the purpose of showing the defendant wrote said letter, then and in that event you are instructed that said letter would not be sufficient within itself and alone to corroborate the testimony of the said Minerva Weems and to warrant a conviction of the defendant. In other words, the law requires that the prosecuting witness, Minerva Weems, shall be corroborated by other testimony than her own, and by such testimony as tends to connect the defendant with the commission of the crime with which he is charged, and if no other witness in the case testified that the defendant either wrote or mailed said letter than the said Minerva Weems, then and in such event the letter within itself and alone would not furnish the corroboration which the law requires in order to warrant a conviction of the defendant. Counsel for the defendant requests the above special charge.”

Miss Weems, in her testimony, produced and identified a letter to her which she said was written by appellant. It was dated June 17, 1911, and addressed her as “Dear Wife.” As stated by appellant, in his brief, this letter contained expressions of love and used many endearing terms to Miss Weems, “but there is nothing in said letter which can be distorted into a declaration that the defendant admitted having intercourse with the prosecutrix.” The main, if not the only thing, the letter would tend to show was that appellant was the accepted suitor ofMiss Weems and to show that they were engaged to be married. There are not only many facts and circumstances testified to .by witnesses other than Miss Weems which tend to show that appellant was engaged to be married to her at this time, bat Miss Weems’ sister, Mrs. Slater, testified positively that appellant had made repeated statements to her with reference to his and her sister’s engagement to be married; that he would tell her that they were going to marry; that, when she would get after him about some little thing, he would tell her not to worry about it; that they were going to marry. It was shown by Mrs. Slater and her father, Mr. Weems, and at least two of their neighbors, Mr. Looney and Mr. Horton, that along about this time appellant was a very, frequent and practically a constant visitor of Miss Weems at her home and accompanied her practically exclusively to parties, church, and other public gatherings. No one disputed that this was a fact along about this time. Miss Weems said the first act of intercourse of appellant with her was in September, 1911, and all this testimony as to his promise to marry this girl was very shortly prior and practically up to the time she said he first had intercourse with her. So that, as said by appellant, nothing in said letter could be distorted into a declaration or admission by him that he had had sexual intercourse with said girl prior to that time. It is true that no one other than Miss Weems testified that appellant wrote and mailed said letter, but there is not only positive testimony, as shown above, that appellant was at that time engaged to be married to Miss Weems, but the fact that this relationship existed between them would of itself be a strong circumstance to show that appellant did write and mail this letter to her. By appellant’s said special charge it will be seen that he expressly excluded any and all circumstantial evidence going to show that he wrote that letter. This is emphasized both in the first and the latter part of this charge.

It is unquestionably the law of this state that the court cannot pick out one item of evidence going to establish any state of facts, when there are also others, and charge on that one item. Such a charge would unquestionably be upon the weight of the evidence, and the court can no more do that against the state than it can against an accused. Hahn v. State, 165 S. W. 223. And as said by Judge McCord in Nash v. State, supra, it is error for the court to pick out one item or fact or circumstance of evidence which tends to corroborate the prosecutrix in a seduction case and charge upon that alone, but, as he states, the whole matter should be submitted to the jury together, and the court can neither enlarge nor restrict the rule.

Appellant cites and relies especially upon Bishop v. State, 151 S. W. 821, and other cases cited by him. We think the Bishop Case, and none of the others, are applicable to this case, for in the Bishop Case especial attention is called to the fact that there was no other fact or circumstance in that case corroborating the prosecutrix, and the court correctly held that, under such circumstances, she could not corroborate herself by testifying that appellant wrote her a certain letter which would or might corroborate her. The facts of this case show that the prosecutrix herein was corroborated, not only by positive but by considerable circumstantial evidence in many particulars on the issue for which the letter was admissible in this case. The court did not err in refusing appellant’s said special charge.

It was unquestionably shown that the pros-ecutrix, Miss Weems, had a baby born to her on May 24, 1913, and the doctor shows that, while nine months is the usual period of gestation, still a woman 15 to 17 years old, with her first child, as prosecutrix was, will go into labor a week or 10 days, or possibly two weeks earlier; that much time less than 9 months. The unquestioned fact that Miss Weems had a baby corroborates her that some man had sexual intercourse with her. She testified positively that appellant was the father of this child, and that she at no time had had sexual intercourse with any other than appellant. Her conception, therefore, could have occurred in the early part of August, 1912. Appellant introduced much testimony tending to show that he was absent from Cisco, where he and prosecutrix lived, at work, from the 14th or 15th of August for some weeks practically continuously. Miss Weems testified positively that even while he was away he was back to see her repeatedly, every Sunday except one, during August, and at each time had sexual intercourse with her. The evidence not only does not exclude the idea that he was away from Cisco where this girl was at the time she said he had sexual intercourse with her, but from the evidence it is clear that he could have been there and could have had sexual intercourse with her, as she claimed, both before he left, on the 14th or 15th of August, and on his several returns during August, and was the father of her child. Appellant also introduced much testimony showing that along about this time, August and September, 1912, others than himself were with Miss Weems and had the opportunity to have intercourse with her, and there was some testimony which tends to show that that was a fact, but the court properly submitted all these questions to the jury in proper charges, and they have found all of them against appellant and in favor of the state.

Taking the testimony as a whole, it clearly shows that Miss Weems, the prosecutrix, was unquestionably corroborated, both by positive testimony and many circumstances, and authorized the jury to find that appellant and no other had sexual intercourse with her and was the father of her child, and that he was engaged to be married to her and promised to marry her, and that she yielded to him alone because of and relying upon his promise to marry her.

No reversible error is shown in this case, and the judgment is affirmed.

On Motion for Rehearing.

We showed in the original opinion that, in the crime of seduction, while the seduced girl is an accomplice, she does not have to be corroborated on each of the requisites of seduction. In other words, the corroboration is in accordance with the law if she “is corroborated by other evidence tending to connect the defendant with the offense charged.”

As shown in the original opinion, the court gave a full and correct charge on that subject. In discussing the fact that appellant made “no specific objection” to the .court’s charge on that subject, we did not intend by that to mean that he made no objection to the court’s charge as a whole in omitting to charge about .the letter. We quoted his special requested charge on that subject, which was the point made by him on that subject. He did object to the omission of the court to charge; his language is, “And the charge of the court is insufficient on account 'of this omission.” No point was made in the original opinion that he lost or waived anything by not specifically objecting to the court’s charge on accomplice. On the contrary, his charge and objection that it was not given or that the court omitted to charge on the point was fully considered and passed upon in the original opinion.

In discussing the time at which the conception of Miss Weems occurred, we incorrectly stated that it “could have occurred in the early part of August, 1912.” We should have said in the latter part of August, 1912, or early part of September. This mistake does not affect the question discussed and decided. The jury had ample evidence before it to believe that the appellant had sexual intercourse with the girl on Sunday, August 25 and September 1 and 8, 1912, and the period of gestation, as shown by the doctor, could have been completed on May 24, 1913, if she conceived on either of these Sundays.

We adhere to the original opinion in holding that the appellant’s said special charge should not have been given under the facts and circumstances of this case. And that the evidence was amply sufficient to sustain the conviction, and that the seduced girl was sufficiently corroborated.

The motion is overruled.


author: HARPER, J.

text:
    LAMB v. STATE.
    (No. 3157.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1.Homicide (§ 171) — Evidence—Other Offenses.
    On a trial for assault on a constable with intent to kill, growing out of an attempt to arrest acpused for killing a third person a few minutes before, evidence that he shot and killed such third person was properly admitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §>§ 351-358; Dec. Dig. § 171.]
    2. Homicide (§ 310) — Instructions—Aggravated Assault.
    On a trial for assault to murder, accused’s testimony that,. as he was walking down the street with a pistol in his hand just after killing a man, some one called, “Look out,” that as he turned he saw approaching a person whom he knew to be an .officer, and that the officer was attempting to" draw a pistol, whereupon he fired, though it raised the issue of self-defense, did not justify the submission of aggravated assault.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 657-661; Dec. ’Dig. § 310.]
    3. Witnesses (§ 337) — Impeachmentf-In-DICTMENTS FOR CRIME.
    On a trial for assault to murder, where accused testified in his own behalf, evidence that he had been twice indicted for murder was admissible to affect his credit as a witness.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    4. Homicide (§ 338) —Appeal —Harmless Error.
    If evidence that accused had been indicted for murdering his father was improperly admitted, its admission was harmless, where he testified that he was innocent and was acquitted, and it was shown that the court instructed a verdict of not guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    5. Criminal Law (§ 829) — Instructions Covered by Those Given.
    Where the court fully presented the case in his main charge and in charges given at accused’s request, there was no error in refusing other requested charges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    John Lamb was convicted of assault to murder, and he appeals.
    Affirmed.
    Mays & Mays and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

Emmett Morrison was constable of the Mansfield precinct, which fact was known to appellant. All the testimony shows that appellant shot and killed John Guest in Ward’s store; Ward went out and found the constable and informed him that appellant had killed Guest; the constable testified that he walked in the drug store and found “Guest lying against the showcase, lying hung down, his head kinder laying back on the showcase.” Appellant objected to any testimony that he-had killed Guest, and to the position the body was in. As the subsequent shooting, and for which he was on trial, grew out of an attempt to arrest him íor killing Guest, and within a few minutes thereafter, we think the testimony admissible. After the constable had gone into the drug store, he was informed that appellant had gone out the back way, and he went in search of him. He saw him down the street, as the state’s witnesses say, with a pistol in each hand, or, as appellant testified, with a pistol in one hand, and another in his overcoat pocket. As the constable ran after him, he unbuttoned his vest, and some say he took out his pistol and put it under his coat; as he got near appellant he called, “Hold on, John, consider yourself under arrest,” when appellant turned and began to shoot at him.

Appellant testifies, admitting that he killed Guest; that on the advice of Dr. MeKnight he started home; that while on his way home some one called, “Look out,” when he whirled and saw Morrison; and that Mr. Morrison started to draw a gun, and he (appellant) shot twice, and then Morrison fired, and the other shots were fired. The court instructed the jury on the law of self-defense as applicable to the evidence, covering that issue, not only in the main charge, but also in the special charge requested by appellant. However, appellant insists that the court erred in not submitting aggravated assault, contending that, if he had killed Morrison, the issue of manslaughter would be in the ease. If that were true, then of course aggravated assault would also be in the case. But we do not think it in the case under the evidence. Appellant, while he denies hearing the officer call to him to surrender, knew he had just killed a man; knew that Morrison was an officer whose duty it was to arrest him; and all he says to raise the issue of manslaughter is that, while walking down the street with at least one pistol in his hand, some one called “Look out,” and as he whirled he saw the officer approaching him, and that the officer was attempting to draw a pistol. This puts the matter in its strongest light for him, and if these facts are true, and lie believed his life in danger, he would have been justified in shooting, and the court so instructed the jury. In the case of Ford v. State, 40 Tex. Cr. R. 280, 50 S. W. 352, this court, speaking through Judge Henderson, says:

“Appellant complains of the court’s charge, because there was no instruction on manslaughter. We have examined the record carefully, and fail to find any manslaughter in the case. Whatever may have been the passion excited in appellant’s mind, the record utterly fails to show any adequate cause for such passion. Appellant’s own evidence, if it is to be credited, would suggest the theory of self-defense at the inception of his attempt to take the life of deceased. He says that the deceased drew a razor on him, and attempted to cut him; but, even from his own testimony, there is no evidence of any assault on him inflicting pain or bloodshed. The court gave a charge on self-defense, and we fail to see any predicate for a charge on manslaughter.”

As said in that case, the court in this case gave a full and fair charge on self-defense, and this was all that the testimony in his behalf called for. In the case of Dougherty v. State, 59 Tex. Cr. R. 471, 128 S. W. 398, this court had occasion to review the authorities on this issue, and it was held that such a state of facts as here presented does not raise the issue of manslaughter.

Appellant having testified in his own behalf, it was permissible to show that he had been twice indicted for murder, as affecting his credit as a witness, and it was so limited in the charge of the court. Perhaps it was improper to show he had been indicted, charged with murdering his father, but as he was permitted to testify, “I was acquitted on the charge of murdering my father; I was as innocent of that crime as a bab'y.” He could not have been injured by the answers, especially in view of the fact it was shown that, in the case where he was charged with killing his father, the court instructed a verdict of not guilty.

The court having fully presented the case in his main charge, and in the two charges given at appellant’s request, there was no error in refusing the other charges requested.

The evidence sustains the verdict, and the judgment is affirmed.


text:
    HYDE v. STATE.
    (No. 3180.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    Assault and Battery (§ 78) — Aggravated Assault — Serious Bodily Injury — Indictment.
    Where, in a prosecution for aggravated assault, in violation of White’s Ann. Pen. Code 1911, art. 601, subd. 7, serious bodily injury was relied on as ground of aggravation, an indictment charging that defendant did unlawfully commit an aggravated assault and battery on prosecutor and did beat, wound, and. bruise prosecutor with his hands and feet by kicking and stamping him, and did thereby inflict serious bodily injury on him, was not objectionable for failure to charge the means by which the injury was inflicted; the injury and not the means being, the criterion under such subdivision by which the aggravation is determined.
    [E.d. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 116-122; Dec. Dig. § 78.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Audléy Hyde was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of aggravated assault, from which conviction he prosecutes this appeal.

No statement of facts accompanies the record; neither does it contain any bills of exception, and under such circumstances the only ground in the motion we can consider is the one alleging that:

“The indictment does not sufficiently charge an aggravated assault, nor does it charge the means by which serious bodily injury was inflicted.”

The indictment alleges that:

Appellant “did then and there unlawfully commit an aggravated assault and battery in and upon A. Luedtke, and did then and there beat, wound, and bruise the said A. Luedtke, with his hands and feet, by kicking and stamping said A. Luedtke with his said feet, and did then and there thereby and therewith inflict serious bodily injury upon said A. Luedtke,” etc.

This indictment is in strict conformity with the forms under subdivision 7 of article 601 of White’s Ann. Penal Code, and, where serious bodily injury is the ground of aggravation relied on, the allegations are sufficient. The means used in inflicting the injury are not to be the criterion under this subdivision of article 601 of the statute, but the injury inflicted, and it must be serious bodily injury, and in the absence of a statement of facts we must presume that the injury was serious.

The judgment is affirmed.


text:
    HAMILTON v. STATE.
    (No. 3151.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 596) — Continuance, Right to.
    An accused is not entitled to a continuance on the ground of the absence of a witness whose testimony would only have been cumulative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dee. Dig. § 596.]
    2..Criminal Law (§ 598) — Trial—Contin-uanoe — Diligence.
    Upon second trial an accused is not entitled to a continuance on the ground of the absence of a .material witness, where she did not appear at the first trial, though summoned, and no additional summons was served.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    3. Judges (§ 39) — Disqualification.
    That a member of the bar selected as a special judge by the attorneys in a civil case was hearing that cause does not deprive the regular district judge, who was disqualified to sit in the civil case, from proceeding with a criminal trial.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 184, 186;' Dec. Dig. § 39.]
    4. Criminal Law (§ 641) — Trial—Continuance.
    Where one of accused’s counsel was selected as a special judge in a civil action in which the regular district judge was disqualified, and the civil action was disposed of and the counsel was present before any testimony was received, action of the court in compelling accused to go to tri’al while such counsel was yet sitting as special judge was not error, where he was represented by other able counsel.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1496-1505; Dec. Dig. § 641.]
    5. Criminal Law (§ 1172) — 1Trlal-Instruc-tions — Weight of Evidence..
    In a prosecution for statutory rape, where accused, on a previous trial, had,been acquitted under an indictment based on á different act, a charge that the jury could not consider evidence of this act against accused, as he had been acquitted thereof, if on the weight of the evidence, was not prejudicial-to accused.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 312S, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    6. Criminal Law (§ 549) — Former Jeopardy — Plea—Necessity of Proof.
    In a prosecution for statutory rape, where accused, on a previous trial had been acquitted under an indictment for a different act, and on the present trial he offered no evidence to show that the act upon which the state relied was the same one, his plea of former acquittal was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1249, 1251; Dec. Dig. § 549.]
    7. Criminal Law (§ 346) — Evidence—Admissibility.
    In a prosecution for statutory rape, where accused claimed that his acquittal in a prior prosecution under an indictment for a different act was a bar, it was proper for the state to introduce evidence that the act relied on in the second prosecution was not part of the same transaction as the act for which he was acquitted.
    [Ed. Note. — For. other cases, see Criminal Law, Cent. Dig. § 786; Dec. Dig. § 346.]
    8. Criminal Law (§ 541) — Trial — Evidence.
    In a prosecution for statutory rape, where accused had been acquitted in a formei prosecution when the state relied on a different act, evidence in the former trial, tending to show that accused was guilty of the act charged in the second prosecution, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. § 541.]
    9. Jury (§ 131*) — Trial—Examination of Jurors.
    In a prosecution for statutory rape, it is not improper for the prosecutor to question jurors as to whether they have any prejudice against the statutory rape statute.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    10. Jury (§ 131) — Trial—Examination of • Jurors.
    In a prosecution for statutory rape, it was not error to exclude, ■ on the preliminary examination of the jurors, questions whether they would as readily believe the testimony of a woman who was not virtuous as one who was virtuous, where the court charged that the jury must find accused guilty beyond a reasonable doubt, regardless of the character of the witness.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    11. Rape (§ 38) — Statutory Rape — Evidence.
    In a prosecution for statutory rape, it is not improper to allow the prosecutrix to testify that she did not understand the enormity of the offense.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. § 38.]
    12. Witnesses (§ 406) — Contradiction.
    In a prosecution for statutory rape, where accused introduced witnesses who testified that at the time the alleged act of intercourse was said to have taken place on the banks' of a branch he was visible, and the prosecutrix' was not present, it is proper for the state to introduce evidence that from the position of accused’s witnesses they could not have seen him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    13. Witnesses (§ 345) — Impeachmeni>-Foe-mek Conviction.
    It is proper for the state to impeach a witness offered by accused by showing that he had been convicted of a felony within the last three years.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    14. Witnesses (§ 414) — Coeeoboeation.
    In a prosecution for statutory 'rape, where accused attempted to impeach prosecutrix by her statements to others as to having intercourse with him, evidence that immediately after the act of intercourse prosecutrix admitted it to her sister is admissible in corroboration.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    15. Rape (§ 59) — Statutoby Rape — Trial— Instetjctions.
    In a prosecution for statutory rape, where the court repeatedly charged that no conviction could be had unless the jury found prosecutrix was under 15 years, it was not necessary for the court to group the facts tending to show she was over 15 years.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    George Hamilton was convicted of rape on a girl under 15 years of age, and appeals.
    Affirmed.
    J. H. Calhoun, of Cisco, and J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and prosecutes an appeal to this court.

Appellant moved to continue this case on account of the absence of three witnesses. Two of them, however, were in attendance on court during the trial, and one of them testified; appellant deciding not to use the other one. The attendance of the third witness, Mrs. Lizzie King, was not secured ; however her testimony would be but cumulative of that of a number of witnesses who testified on the trial, and, this not being the first trial of the case, it would not be ground for reversal of the judgment. In addition to this, the process shows it to have been issued and served before the first trial was had; she did not attend that trial,- and no process was subsequently issued to secure her attendance at this second trial, consequently the diligence used was insufficient.

It appears from the record: That this case was set for trial on a given date. That on the day prior thereto one of the attorneys in the case, Judge Calhoun, was agreed on as a special judge in a civil ease in which Judge Blanton, the duly elected judge of the district, on account of relationship, was disqualified to try. While Judge Calhoun was engaged in trying the civil case in the county courtroom, Judge Blanton called this case for trial in the district court. Appellant, through his attorney, objected to proceeding with the trial. That there could not be two different trials proceeding before two different district judges in Eastland county. That the law had not provided for two district courts in Eastland county. Judge Calhoun was not elected special judge, was not appointed by the Governor, but voluntarily assumed the position of judge in a certain ease, knowing that this case was set for the next day. The fact that at the request and agreement of the parties he was presiding in a civil case in the county courtroom would not prevent Judge Blanton, the regular elected judge of the district court, from continuing his court and trying cases. Oliver v. State, 159 S. W. 238, and cases there cited. The facts in this case show that before this case was called all evidence in the civil case had been received, and all that remained to be done was to charge the jury and counsel to argue that case, and before any testimony was adduced in this case Judge Calhoun had completed the trial of the civil case, and was in attendance on this trial. Mr. Stubblefield, an able attorney, was present in Judge Blanton’s court all the time, protecting his client’s interest, and the trial judge did not abuse his discretion in compelling Mr. Stubblefield to proceed with this case as far as he had gone before Judge Calhoun was able to be present and assist him in the trial.

It appears that appellant was indicted for having sexual intercourse with the same girl on May 5th, this indictment alleging the offense to have been committed on August 15th of the same year. The transactions are distinguished in the record by referring to the offense alleged on May 5th as the “cornfield” transaction, and the offense on August 15th as the offense in the branch; the whole testimony showing they were two separate and distinct offenses. Appellant was acquitted in the district court of Callahan county of the offense alleged to have taken place on May 5th, and when this case was called he filed a plea of former acquittal. This rendered it necessary and obligatory on the part of the state to prove that it was a separate and distinct offense than that for which he had been tried in Callahan county, and, of course, the rule that prohibits the introduction as to more than one offense admissible. The girl testified that appellant had had sexual intercourse with her on three different occasions, once at her home in the absence of her mother, once in the cornfield, and once in the branch near the peach orchard. When the girl had thus testified the district attorney selected the offense that she testified took place in the branch near the peach orchard on August 15th, and directed all his testimony to prove that offense, and introduced no proof that appellant had had sexual intercourse with the girl on either of the other occasions. The court also instructed the jury at the time of the introduction of this testimony:

“Now, gentlemen of the jury, in so far as this alleged statement of this witness, with reference to an alleged act of intercourse on the part of the defendant with her, that is alleged to have taken place in the cornfield, you will not consider that for any purpose whatever against the defendant. He has been tried in Callahan county in the district court there for that charge, for an alleged act of intercourse in the cornfield on his place, and acquitted of that charge, and he is on trial now for an entirely different charge, and you will not consid^ er that against him for any purpose whatever, because he has been acquitted.”

Appellant complains that this instruction was a comment upon the weight of the testimony. If so, it was a matter upon which he ought not to be heard to complain, as it directs the jury they cannot consider such testimony against appellant for any purpose, and further tells them he had been acquitted of that offense. If appellant had introduced any testimony that the offense as of date May 5th and that of August 15th was one and the same offense, he might have some complaint, but he offered no such testimony, and the testimony before us shows that they were two separate and distinct transactions, having no connection with each other. And as he offered no testimony tending to show in the least that they were one and the same transaction, the court did not err in failing to submit his plea of former acquittal to the jury in his charge for a finding. There was no testimony upon which to base such a1 charge, as the evidence and all the evidence showed two separate and distinct transactions, and the court properly informed the jury:

“You are instructed, as to an alleged act of intercourse alleged by Julia Pace to have occurred in defendant’s cornfield, that the defendant has already been tried at Baird, Tex., and acquitted of that charge, and that you cannot consider against the defendant for any purpose whatever any evidence of said alleged act of intercourse in said cornfield.” Morton v. State, 37 Tex. Cr. R. 133, 38 S. W. 1019.

Appellant by his plea of former acquittal rendering it incumbent upon the state to prove a separate offense from that for which he had been tried, there was no error in the action of the court admitting evidence of other acts of intercourse than one, and especially is this true when he instructed the jury as above, and then instructed them:

“The state having elected to rely for a conviction upon the transaction alleged to have occurred in a branch west of Julia Pace’s home, before you would be authorized in finding the defendant guilty of rape, you must first believe from the evidence beyond a reasonable doubt that the defendant had carnal intercourse with the prosecutrix, Julia Pace, in a branch west of Julia Pace’s home, and that at the time of having such carnal intercourse, if any, the said Julia Pace was under the age of 15 years, and that she was not then the wife of the defendant, and that the defendant penetrated the private female organ of said Julia Pace with his private male organ.”

And having given these instructions to the jury, it was not necessary to give the special charge requested in regard to this matter.

Appellant objected to the introduction of any testimony adduced at the trial in Callahan county being introduced on this trial, as he had been acquitted of that offense. If the testimony tended to prove that appellant had raped the girl on August 15th, there was no error in admitting it, and only such testimony as tended to prove the offense of rape on August 15th in the branch was admitted.

The district attorney asked the veniremen, “Have you any prejudice against the law which makes it an offense for a man to have intercourse with a girl under the age of 15, even though she consents,” and upon a juryman answering that he had, the court sustained a challenge as to such juryman. In this there was no error.

Appellant desired to ask each venireman, “in passing on the question as to whether a defendant was guilty or innocent, would you believe the testimony of a woman not virtuous as readily as you would one who is virtuous?” The court refused to permit him to propound this question. As the jury by the charge of the court was required to find appellant guilty beyond a reasonable doubt, regardless of the character of the witnesses introduced, there was no error in the action of the court.

Appellant also complains that Julia Pace was permitted to testify that she did not realize the enormity of the crime at the time she submitted to the acts of intercourse. As she was a girl under the age of consent, and the law recognizing that she had not at that age reached the years of discretion, such testimony would not present reversible error.

Julia Pace testified that the act of intercourse took place in a branch near her mother’s home, and just beyond the peach orchard. It appears by all the testimony, both for the state and the defendant, that on August 15th appellant got out of a wagon and went to the peach orchard where Julia Pace and other members of the family were eating peaches; that they left the orchard and went to the home of Mrs. Pace. The state’s contention is that appellant asked for a drink of water, when Julia went outdoors to get a bucket of water; that while she was out there appellant left the house, and he and Julia went to the branch and had the act of intercourse. To meet this the defendant introduced several witnesses, who testified they saw appellant when he came out of the house and kept him in view until he had passed the branch and had gone to his field. To meet this testimony, the state introduced a number of witnesses, who testified that they had been shown the place in the branch where Julia claimed the act of intercourse took place; that they had gone to this place and stood there in the branch, and one could not see appellant as he would cross the branch at this place from the various points where appellant’s witnesses had placed themselves. One witness for the state testified that “You could place a wagon and team in this branch at this point,” and it could not he seen from the respective points where appellant’s witnesses had placed themselves. As it was necessary to cross this branch in going from the home of Mrs. Pace to appellant’s field, the way all the witnesses •say appellant traveled, there was no error in permitting these witnesses to testify that they had gone to this point, and from it it was impossible for appellant’s witnesses to have seen him all the time as he went along the way he did go. As to the weight of the testimony, as to whether the state’s witnesses or the appellant’s witnesses were telling the truth, this was a question for the jury. Certainly it was permissible for the state to show, if it could do so, that appellant’s witnesses could not see him as he went along this way.

It was permissible for the state to prove that Bud Rice was convicted and sentenced to the penitentiary in 1910. This would go to his credit, and the conviction was not too remote in time.

The only other question raised by the bills of exception is that the court permitted Emma Pace to testify that she saw her sister as she came up out of the branch on this occasion, and that Julia admitted to her she had just had intercourse with appellant. It is somewhat in doubt as to whether the record discloses that Julia was in that state of mind to render this res gestae of the transaction. It. is true the remark took place but a few moments after the act is alleged to have taken place, but this is not the only essential in res gestae — it must be the event speaking, not one speaking of the event — and this girl does not appear to have been in a state of excitement, or in any other condition of mind, for it to be a spontaneous utterance, but will bear the marks of calmness and deliberation. However, the appellant in his cross-examination of Julia laid predicates to impeach her as to her statements made to others as to ever having had intercourse with appellant, and proved contradictory statements, and otherwise impair her credit as a witness, and under such circumstances we do not think the court erred in admitting this testimony.

The first exception to the charge of the court is that the court erred in taking away from the jury the consideration of defendant’s plea of former acquittal. As hereinbe-fore shown, there was no error in the court so doing under the facts in this case.

The next is that the charge is incomplete in that it was incumbent on the court to group the facts tending to show that she was under 15 years of age. While the word '“under” is used in the objection, we presume appellant intended to use the word ‘over,” for the court instructed the jury they must find beyond a reasonable doubt that she was under 15 years of age before they could convict and while the only evidence offered by appellant tending to show her age was not what she and her mother testified to was her height and weight, yet out of the abundance of precaution the court did instruct the jury, “.if you have a reasonable doubt that the said Julia Pace is under the age of 15 years, you will acquit the defendant.”

The only other complaint is that the court erred in refusing to instruct the jury not to consider any of the testimony introduced against appellant on his trial in Callahan county. As hereinbefore stated, if the testimony tended to show that appellant was guilty of this offense of rape on August 15th, in the branch near the home, the testimony was admissible, and the court did not err in refusing to instruct the jury not to consider it.

The judgment is affirmed.


text:
    Ex parte COWDEN.
    (No. 3187.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    1. Animals (§ 50) — Stock Law Elections— Statutes.
    The statute authorizing stock law elections is not unconstitutional.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    2. Animals (§ 50) — Stock Law — Repeal.
    Matagorda county, specifically placed under the stock law by Acts 31st Leg. c. 69, is not taken from under it by Acts 32d Leg. c. 94, specifically naming the counties, not including it, in which it is proposed to repeal the law. ‘
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.] • '
    3. Animals (§ 50) — Stock Law Election-Order and Proclamation.
    The order of the commissioners’ court for a stock law election, and the proclamation of the county judge issued in conformity therewith, are to be construed as a whole.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    4. Habeas Corpus (§ 96) — Scope oe Inquiry.
    Only matters which would render the trial and judgment of conviction void, and not mere irregularities which would render it voidable, can be considered in habeas corpus.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 81; Dec. Dig. § 96.]
    5. Indictment and Information (§' 110)— Complaint — Charging Offense — “Willful” — “Knowingly.”
    The complaint does not fail to charge an offense because using “willful” where the statute uses “knowingly”; the words being synonymous, and “willful” being of more extensive meaning (citing Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836; vol. 5, pp. 3937-3939).
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.

      Habeas corpus proceedings by C. E. Cow-den, Jr. From an order remanding bim to custody, he appeals.
    Affirmed.
    J. W. Conger, of Bay City, for appellant. R. R. Lewis, Co. Atty., and Gaines & Corbett, all of Bay City, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted in the justice court for permitting stock to run at large in a portion of Matagorda county where it is alleged the stock law prohibiting horses, cattle, etc., from running at large had been adopted. He appealed the case to the county court, was again tried and convicted, when he sued out a writ of habeas corpus before Hon. Samuel J. Styles, district judge. Upon a hearing Judge Styles remanded the relator to the custody of the sheriff, and from this latter order he prosecutes an appeal to this court.

Relator’s first contention is that the statute authorizing stock law elections to be held is unconstitutional and void, but this has so often been decided adversely to his contention relator does not seriously contend for this proposition. Roberson v. State, 42 Tex. Cr R. 595, 63 S. W. 884, and cases there cited. The question is discussed thoroughly in that case and other cases cited therein and we see no reason to reverse our holding.

The next contention is that while the stock law was by Acts 31st Leg. c. 69, put in force in Matagorda county, yet it is contended that by Acts 32d Leg. c. 94, and Acts 33d Leg. c. 48, said law was repealed as to Matagorda county. This question was thoroughly discussed in the case of Holman v. Cowden & Sutherland, 158 S. W. 571, in an opinion by Judge Reese of the Court of Civil Appeals, and it was therein held that the act of the Thirty-First Legislature did specifically place Matagorda county under the stock law, and that such act had not been repealed by any subsequent legislative enactment. A writ of error was refused by our Supreme Court in that case. The question was again raised in the case of Ward Cattle Co. v. Carpenter, 168 S. W. 408, recently decided by the Galveston branch of the Court of Civil Appeals, and we adopt the opinions in those cases. Contests of the legality of elections is a question peculiarly within the jurisdiction of our civil courts, and we are not only inclined to give great weight to their opinions, but feel that we should be bound thereby on all questions in connection therewith which have been passed on by our Supreme Court. Not only is this true, but, after a careful investigation of the question, we are of the opinion that, if it were before us as an original proposition, we would so hold, for the later acts specifically name' the counties in which it is proposed to repeal the law, and, having thus designated the counties in which the law is to be repealed, it would do violence to the act of the Legislature to hold that it repealed the law in any county not so named.

However, relator insists that if the law is in force in Matagorda county, and admitting that the petition for the election is legal and in conformity with the law, yet he says-that the order passed by the commissioners’ court ordering the election to be held and the proclamation of the county judge are insufficient in that the order does not state what stock would be prohibited from running at large, and the proclamation of the county judge does not state on what day the election is to be held, etc. In order to sustain these contentions, he seeks to subdivide the order of the court into what he terms findings of fact by the court and the judgment of the court. He admits that, if we construe the order and proclamation as a whole, then all the statutory requirements are complied with. This we think the proper construction to place on the order ordering the election to be held and the proclamation of the county judge issued in conformity with such order, and, when we view them in their entirety, all the requirements of articles 7239, 7240, 7241, 7247, and other provisions of the Revised Statutes, were fully complied with. This we think is in effect the holding of the two cases above cited, and they should be so construed, but, if in fact this question was not passed on by the court in those cases, we hold that the stock law has been legally adopted in the territory described in the petition for an election and the orders of the commissioners’ court. In fact, the recitations in the orders as to what purposes the election shall be held, the date of the election, and other essential particulars in these orders seem to have been not only recited but to have been made very prominent by repetition.

This case being before us on writ of habeas corpus, many questions are raised that we cannot review that we would be authorized to do if the case was before us on a regular appeal. On habeas corpus it is only those matters which would render the trial and judgment void and a nullity that we can review. Ex parte Taylor, 63 Tex. Cr. R. 571, 140 S. W. 774; Ex parte Hendrix, 64 Tex. Cr. R. 452, 142 S. W. 570, and cases there cited. Most of the complaints, other than those hereinbefore discussed, are mere irregularities and do not render the proceedings void, but would be reviewable on appeal; however, in this proceeding we can furnish no relief on account of mere irregularities which would only render the proceedings voidable but not void.

Relator insists that the complaint charges no offense in that the word “willful” is used where the statute uses the word “knowingly.” It has always been the rule in this court that it is better to follow the language of the Code, but, if words of equivalent meaning are used, the complaint should not be quashed but held valid. Mathews v. State, 36 Tex. 675; Caldwell v. State, 2 Tex. App. 53; Sansbury v. State, 4 Tex. App. 99. As said in some of the eases, if the word used is of more extensive meaning than the word used in the statute, the complaint is valid. The word “knowingly,” as used in the statute, means that the act must have been done within the knowledge of the person charged, with the intent to commit the act. “Willful” also carries that meaning and more. In Garza v. State (Cr. App.) 47 S. W. 983, it is held that the word “willfully,” as used in the' statute, is synonymous with “knowingly.” In Words and Phrases, vol. 8, p. 7474, we find the following excerpts and citation of authorities:

“ ‘Willfully’ is equivalent to ‘knowingly.’ Fry v. Hubner, 35 Cr. 184, 57 Pac. 420, 421; Catlett v. Young, 143 Ill. 74, 32 N. E. 447, 448; Galveston, H. & S. A. Ry. Co. v. Bowman (Civ. App.) 25 S. W. 140, 141.
“The term ‘willfully’ implies that the act is done knowingly. North Carolina v. Vanderford (C. C.) 35 Fed. 282, 286; State v. Stein, 48 Minn. 466, 51 N. W. 474, 475.
“The w'ord ‘willfully’ implies, on the part of the wrongdoer, knowledge, and a purpose to do the wrongful act. Potter v. United States, 155 U. S. 438, 15 Sup. Ct. 144, 147, 39 L. Ed. 214; Spurr v. United States, 174 U. S. 728, 19 Sup. Ct. 812, 815, 43 L. Ed. 1150; State v. Smith, 52 Wis. 134, 8 N. W. 870, 871.
“ ‘Willfully,’ as used when saying that an act was willfully done, implies that the act was done by design; done for a set purpose; and it would follow that it was knowingly done. Wong v. City of Astoria, 13 Or. 538, 11 Pac. 295, 296.
“ ‘Willfully,’ as used in connection with an act forbidden by law, means that the act must b" done knowingly or intentionally, and that the act was committed with knowledge, and that the will consented to, designed, and directed the act. Woodhouse v. Rio Grande R. Co., 67 Tex. 416, 3 S. W. 323, 324.”

As hereinbefore stated, the other matters complained of were irregularities and questions we cannot review on habeas corpus.

The judgment is affirmed.