author: PRENDEKGAST, J.

text:
    DAVIS v. STATE.
    (No. 4500.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.
    On Motion for Rehearing, June 27, 1917.)
    1. Homicide &wkey;rill — Justifiable Homicide —'Theft at Night.
    Under Pen. Code 1911, art. 1105, providing that homicide is permitted by law when inflicted for the purpose of preventing theft at night, defendant, who was assisting in the theft of watermelons at night was not justified in killing deceased, though the latter and his companions were attempting to capture defendant.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 143, 144.]
    2. Homicide <&wkey;234(l) — Murder—Evidence —Sufficiency.
    In a prosecution for murder by one engaged in theft at night, evidence held sufficient to sustain the verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 482.]
    On Motion- for Rehearing.
    3. Criminal Law <&wkey;1186(4) — Appeal and Error — Error Favorable to Accused.
    Where, even if the jury believed defendant’s theory, a conviction of manslaughter would have been proper, a charge that, if jury believed defendant’s theory, they should acquit him, although erroneous, was without prejudice, being more favorable than a correct charge, and defendant’s counsel having examined such charge omitting any reference to manslaughter, and permitted it to be read to jury, no reversible error is shown in view of Vernon’s Ann. Code Cr. Proe. 1916, art. 743, providing that the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant.
    4. Criminal Law <&wkey; 1038(1), 1090(14) — Appeal and Error — Matters Review able.
    Objections to the charge in the court below as required by Vernon’s Ann. Code Cr. Proe. 1916, art. 743, and bills of exceptions as required under article 744 were necessary for review on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 281S, 3204.]
    5. Criminal Law &wkey;>1159(l) — Appeal and Error — Grounds por Reversal.
    That this court might have rendered a more merciful verdict would not alone authorize it to set aside the verdict; as the jury alone, under the Constitution, is authorized to fix the punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074, 3082, 3083.]
    Appeal from District Court, Washington County; R. J. Alexander, Judge.
    Ben Davis was convicted of murder, and he appeals.
    Affirmed.

      Mathis, Teague & Mathis, of Brenham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDEKGAST, J.

Appellant was convicted of murder with the death penalty assessed.

There is no necessity of reciting the testimony of the several witnesses. However, it was clearly sufficient to show, and authorize the jury to find: That shortly before the night of July 8, 1916, John Davis, a brother of appellant, and Charley House had stolon a large number, 57, watermelons out of the field of Prank Wehmeyor, and hid them in the bushes and grapevines in Mr. Buck’s hayfield. That Mr. Wehmeyer had discovered that his melons had been stolen, and after searching found them where they were hidden, and thereby recovered their possession. That he then procured the assistance of several other persons, and together they went to Mr. Buck’s field, where the thieves had secreted the melons on Saturday night, to apprehend the thieves when they would come to regain and remove the melons. They were armed, but not for the purpose of killing the thieves, or any of them, but to catch them. They remained near where the melons were until about 2 or 2:30 o’clock that night. The moon shown until nearly that time, but had gone down, and it was dark thereafter. After it got dark at said hour of about 2:30 o’clock in the morning, appellant with his said brother and the other thief and another party together went to get and haul away the melons. They went in a two-seated hack. They had sacks along with them to get the melons and carry them to the hack. AVhen they got near the place they all got out, hitched their team, and with the sacks went to get the melons. Appellant shortly before this had procured his gun and took that along. When they got out of the hack he took this gun with him to get the melons. He with his companions were discovered by deceased and his associates going to get the melons, and just as appellant reached the melons and stooped down to begin putting some of them in a sack the deceased called to him and the others two or three times to “hold up, that they had stolen the melons, but had not gotten away with them, and to hold up, we got you.” Deceased and two of his companions were at this time very near to appellant, the testimony showing that he was within six to ten feet of him. Appellant replied, “Go to hell,” and Immediately shot and killed deceased. That when he fired the first shot which killed deceased he and the others ran. Then deceased’s companions repeatedly shot, but not at first to hit or kill appellant br any of his companions. They all escaped at the time. Appellant was so close to deceased when he shot and killed ’him that deceased’s clothes were powder-burned. Appellant knew before he got out of the hack and took his gun and sack along with him to get the melons that they had been stolen, and with this knowledge he went to get them, and was in the act of putting some of them in a sack to carry away when he was so hailed by deceased.

Our statute (article 1105, P. O.) provides that homicide is permitted by law when inflicted for the purpose of preventing the offense of theft at night, if when the killing takes place: (1) It reasonably appears by the acts or words coupled with the acts of the person killed that it was his purpose and intent to commit the theft; (2) while the person killed was in the act of committing the offense of theft, or after some act done by him showing evidently an intent to commit such offense; (8) and the killing is justifiable while the thief is at the place of the attempted theft, or within gunshot thereof. So that, if deceased had killed appellant under the circumstances, he unquestionably would have been justified in the killing. Under this statute the deceased was clearly within the law in attempting to apprehend the thieves, and in hailing them. Even if he or any of his companions had first shot, or shot at appellant, that would give him no right to kill deceased, and his claim of self-defense would not avail him; for, if an armed thief at night caught in the very act of theft could defend on the ground of self-defense because the owner hailed him, or even shot at him, it would be in direct conflict with and nullify this statute.

The court, however, submitted self-defense in his favor on his testimony to the effect that he was shot at first, to this effect, that if the deceased, or the others acting with him at the time of such, shooting, first shot at the defendant with intention to kill him, or inflict upon him serious bodily injury, then he had the right to shoot the deceased, and he would not be required to retreat in order to avoid the necessity or apparent necessity of shooting the deceased, and if the jury so find they will acquit him; and further, in passing upon this matter of self-defense, the jury must do so from the standpoint of defendant as it appeared to him at the time.

Appellant in the trial court, before the trial was concluded, made no exception whatever to the court’s charge, and asked no special charge at all. He now contends that the court erred in not charging self-defense in his behalf on apparent danger. Even if we could now consider such question, we think the evidence did not raise and the court did not err in failing to charge on any such issue. He charged on self-defense from the only standpoint which could be contended was raised by the testimony. After the trial he contended that the court erred in not charging the law of manslaughter. Even if the evidence did raise such an issue, the court did not err in failing to submit a charge on that subject, because he did not at the time except to the court’s charge because of such failure, nor ask any charge on the subject, and under the circumstances of this case no reversible error is shown.

The evidence was amply sufficient to sustain the verdict.

The judgment will therefore be affirmed.

On Motion for Rehearing.

Without a review of the evidence, which is stated in some detail in the original opinion, it shows, from the state’s standpoint, that appellant, while armed with a shotgun, went at night to the deceased’s premises to steal his property or assist in the theft' thereof, and that as soon as deceased, who was on watch, spoke to appellant, appellant shot and killed him. Deceased, learning that his melons had been stolen and hidden, went with his friends to the premises to catch the thieves. The state’s evidence is to the effect that, when appellant and others engaged in the theft appeared, deceased said: “Hold up; you got the melons, but you didn’t get away with them; we have got you.” Appellant said, “Go to hell,” and fired immediately. The deceased was armed with a •shotgun. A state’s witness says: “He had his gun in one hand, in this hand (indicating) under his arm. Just as the gun fired he had his gun up like that (indicating), catching his gun up when the gun fired.” The same witness was cross-examined and asked this question: “You say positively that Wehmeyer did not raise his gun, or make an effort to shoot, until after Ben raised his gun? A. No, sir; he didn’t raise his gun. Ben says, ‘Go to hell.’ When he said that he was coming up with his gun. Just as he said that his gun fired.” Other witnesses for the state give substantially the same testimony as that quoted above. The state’s witness Róese testified that deceased said, “0, yes; we have got you now.” That at the time he said, “We have got you now,” appellant shot. He did not more than speak that word when appellant shot him. Deceased did not try to shoot them in any way. He had a gun; “the position he held it in was down that way (indicating), like a man walking up, and would have the gun down that way, bending down.” The same witness on cross-examination was asked: “Do you know whether Wehmeyer was making any effort to shoot when he got shot? A. No, sir; he could not shoot. He did not have his gun in position at all if he wanted to shoot.” Deceased’s clothes were powder-burned.

Appellant’s theory and evidence was that, when he discovered the deceased, he ran, and deceased, or some one in his party, exclaimed, “Hold up; too late to run; I will kill you;” that a shot was immediately fired at him while he was running; and that after he had been shot at he returned the fire. Before shooting he ran some distance, stumbled and fell, and fired without taking aim or shooting at any one in particular.

The court in its charge accorded the appellant the perfect right of self-defense predicated upon his testimony and theory, namely, that he was fired at by the deceased, or some of the party with him, before he shot the deceased. This charge, while not in approved terms, was more favorable to appellant than was justified under the law and facts. At most, he was entitled, if his theory is believed, to the imperfect right of self-defense. Reed v. State, 11 Tex. App. 514, 40 Am. Rep. 795; Franklin v. State, 34 Tex. Cr. R. 288, 30 S. W. 231; Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792. That is to say, if the jury believed his theory to be true, they would have been authorized by the law to convict him of manslaughter, but would not have been authorized to acquit him.

The charge on self-defense was predicated upon the only defensive facts that were in the record, viz. that appellant upon discovering his adversaries retreated and fired only after he had been fired upon. The charge of the court presenting this theory, and, omitting any reference to manslaughter, was examined by appellant’s attorneys and permitted by them without complaint to be read to the jury.

The case of Franklin v. State, 34 Tex. Cr. R. 288, 30 S. W. 231, is not understood by us as holding that a man caught in adultery and assailed, who slays the injured party, is guilty of no greater offense than manslaughter, but it holds that the wrong committed by an adulterer does not completely take away his right of self-defense, and while it may not justify the killing of his assailant, the jury should be told that, believing his theory, they will be authorized to mitigate his offense and convict of manslaughter. In this case the same is true. The court would have been correct in telling the jury that, believing appellant’s theory, they were authorized to convict of homicide of the degree of manslaughter, but the court did more; he told the jury that, believing appellant’s theory, they would acquit him of any offense. In the trial of the case appellant had the benefit of an instruction that the jury should acquit if they believed his story or had a reasonable doubt as to its truth. Content with this charge, more favorable than the law authorized, appellant submits his cause to the jury. After the verdict, is it sound to say that by submitting his defensive facts in a light more favorable than the law justified, and in failing to submit them in their less favorable light, there has been a failure to accord appellant such a fair and impartial trial as will require this court to set side the verdict rendered? Article 743, Vernon’s C. C. P., provides:

“Whenever it appears by the record in any criminal action upon appeal of the defendant that any of the requirements of the nine preceding articles [articles 735-742] have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial, and all objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial.”

We are not called upon to consider any of the errors mentioned in this subdivision of the statute, because there were no objections to the charge, and there are no bills of exception, under article 744, O. O. 3?., pointing out errors in the trial. These are necessary. See notes articles 743 and 744, Vernon’s C. G. P. Looking alone to the fairness and impartiality of the proceedings, we are confronted with the Question above put: Does a submission of appellant’s defensive facts to the jury in a light more favorable than the law requires, and the failure to submit it with a limitation upon his rights required by law, condemn the verdict as resulting from unfairness or impartiality? Bearing on this question is a long list of cases referred to in Vernon’s G. C. P. p. 509, note 20, to the point that a complaint of a charge more favorable than authorized by law is not ground for reversal. It seems to us, in considering the record, that if the jury had been told that, believing appellant’s defensive theory, they could find against him no more than manslaughter, he could have received no greater benefit than if the jury was told, as it was told, that, believing the same facts, they were to acquit him. As a practical matter either charge has a tendency, under all the facts, to give the jury an opportunity to mitigate the punishment, and the charge given was quite as useful for this purpose as would have been the charge on manslaughter, because both would have depended upon the same facts. The result of the trial indicates that the jury did not believe defendant’s theory; that it did not raise a reasonable doubt in their minds as to the accuracy of the state’s theory to the effect that the appellant, while so close to the deceased his clothes were powder-burned, shot the deceased before appellant was fired upon or any effort was made to fire upon him. This court cannot say that the trial was illegal, nor that it was unfair or not impartial.

The fact that this court might have rendered a more merciful verdict on the facts would not bring it within its province on that account alone to set aside the verdict of the body which under the Gonstitution is authorized to fix appellant’s punishment.

The motion is overruled.
      For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    JOINER v. STATE.
    (No. 4506.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Parent and Guild &wkey;>17(6) — Duties oe Parent-Criminal Oefenses — Evidence—Sue-EICIENCY.
    Evidence held insufficient to establish the offense by a father of willfully neglecting and refusing to provide for the support and maintenance of a child under Acts 33d Leg. c. 101, § 1 (Vernon’s Ann. Pen. Code 1916, art. 640'a).
    [Ed. Note. — Eor other cases, see Parent and Child, Cent. Dig. § 181.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    J. H. Joiner was convicted of an offense, and he appeals.
    Reversed and remanded.
    E. W, Napier, of Wichita Palis, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for willfully neglecting and refusing to provide for the support and maintenance of his child, 4% years old, who was in needy and necessitous circumstances.

The prosecution was under section 1 of the Acts of 1913, p. 188 (1 Vernon’s Crim. Statutes, art. 640a), which is to this effect: Any parent who shall willfully or without justification neglect or refuse to provide for the support and maintenance of his child under 16 years of age in necessitous circumstances shall be deemed guilty, etc.

Appellant contends, among other things, that the evidence was insufficient to sustain his conviction. This question only need be passed upon. The uncontradicted testimony shows that about April 1, 1917, appellant’s child, 4 y2 years old, was very sick with pneumonia. He and his family were members of a religious order which believed, and he believed, that medicine should not be administered to a sick person, but instead treated by praying to God to heal, and in addition bathe the patient with water and oil, and do such other things as may be within their power to make the patient comfortable, to relieve pain, and expedite recovery. Appellant practiced this treatment with his child, and, according to his testimony, which was undisputed, he and his wife were doing all they could and all they knew how to do for him. He himself worked in the daytime, and was with his child and family at night. His wife was in constant attendance upon the child. The county and city health officers and the humane officer learned of the serious illness of this child, and eommendably took steps to have the child properly treated from their standpoint. When they saw the child and its serious illness they demanded that appellant should call in a physician to attend and treat it. He at first refused to do this because he claimed that the treatment they were giving the child and their prayers were all that was necessary and that the child would be cuied. Because he refused to then call a physician appellant was at once arrested and taken to the jail, but not incarcerated. These officers told him that unless he called a physician that they would remove the child to a sanitarium and have the proper attention given to it. He thereupon called a physi-cían, who treated the- child, and it soon recovered.

Persons might differ as to whether or not appellant’s method of treating the child was a proper one, and, of course, no one can know whether the child would have recovered under that treatment or not; but under any phase of the testimony we think it fails to show or authorizes the jury to find that appellant willfully or without justification neglected to properly provide for his child. On the contrary, we think it shows that he did not willfully or without justification fail to provide for his child in the sense intended by said statute to be made an offense. And while he at first refused to call a physician and have his child properly treated, he did so as soon as the county health officers informed him of the serious illness of his child and the necessity for medical attention, and they would remove the child to a sanitarium, etc. It is true that even at first when so informed he declined to call a physician, but the testimony shows that he did so very soon, or practically immediately thereafter.

We think the evidence excludes the idea of his neglect of his child or failure to provide for it in this respect to such an extent and for such a length of time as would show or justify the jury to find that he did so willfully.

The judgment will therefore be reversed, and the case remanded.
      <S=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    WEIGE v. STATE.
    (No. 4459.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.)
    1. Homicide &wkey;>166(l) — Evidence—Admissibility.
    In a homicide case, evidence of a rumor, ■which might have caused accused’s acts, is inadmissible, unless accused’s knowledge of it is proved.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 320'.]
    2. Criminal Daw <&wkey;1169(2) — Appeal — Harmless Error.
    Any error in admitting evidence of a rumor in a homicide case is no cause for reversal, where the rumor was subsequently proved without objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. § 3138.]
    3. Criminal Law <&wkey;1171(l) — Trial — Misconduct of Counsel.
    In a homicide case, where the defense was insanity, the prosecuting attorney’s argument, urging a conviction upon theory that accused’s insanity could later be inquired into, held reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127.]
    4. Criminal Law <&wkey;728(l) — Triai>-Mode of Makino Objections.
    The trial court, in a homicide case, probably abused its discretion in requiring accused’s counsel to whisper his objections regarding prosecuting attorney’s misconduct, since Const, art. 1, § Í0, guarantees a speedy public trial and right to he heard by counsel, and a bystander’s bill of exceptions could not be made, pursuant to Rev. St. 1911, arts. 2066, 2067, in case the court and attorneys failed to agree upon the objections or ruling so made.
    Prondergast, J., dissenting.
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Otto Weige was. convicted of murder, and appeals.
    Reversed and remanded.
    C. G. Krueger, of Bellville, and Mathis, Teague & Mathis, of Brenham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Supplementing ,what has been said, and making more definite the reasons on which the majority of the court base their judgment that the record requires a reversal, the following observations are made:

The appellant killed his wife under very revolting circumstances. The only motive which from the evidence suggests itself to our minds is that of mental derangement on the part of appellant. While there is a conflict of evidence as to the sanity or insanity of appellant, his witnesses make out a strong case in support of the affirmative. The appellant was afflicted with many physical defects. He stuttered so that he could hardly be understood. He' was so deaf that it was almost impossible to make him hear or understand a conversation. His faculties were impaired • from sickness in childhood. There was testimony that his mental condition was bad. Many incidents in his life were related which could be explained only upon the theory that his mind .was deranged. At times he would manifest great excitement with no apparent cause. 1-Ie would form and act upon conclusions of fact which had no foundation in truth. Members of his family had undertaken to look after business transactions for him on the theory of his want of capacity. He had been charged with lunacy. He grew greatly excited about imaginary lawsuits. Experts, as well as nonexperts, testified to his insanity. The expert described him as an imbecile, with delusions, and declared that at the time of the commission of the offense he did not clearly know the difference between right and wrong, did not realize the consequences, and that his actions were not those of a normal man. On cross-examination, the expert introduced by appellant testified that if there was a general rumor that his father and his wife were guilty of illicit relations, and that appellant had heard of this rumor and believed that that was the real cause of the separation of his mother and father, such facts would not show a delusion. Subsequently, the state, over appellant’s objection, introduced evidence of a rumor of this character existing in the neighborhood some years before the homicide. The court, in qualifying the bill, says that he permitted this testimony to meet that of the expert above mentioned, and refers to the testimony of O. W. Schmidt, a state’s witness.

Schmidt was a justice of the peace, a close neighbor of appellant, and on the day on which the homicide took place had taken the appellant to town with him in his buggy. On his way back they stopped at appellant’s sister’s house, and appellant had a talk with his sister, which the witness did not hear. After this talk appellant told the witness that he had learned that his parents had separated and that it bothered him; that he was getting dizzy and everything was turning round, and that his wife was the cause of it; that he had just learned that his parents had separated, and that his wife was the cause of it; that his old father and mother had separated, and it troubled him; that on their way home they met appellant’s uncle, and appellant got out of the buggy and talked to him. After-wards he got back in the buggy and simply said: “This is too bad.” This is about all the conversation that took place on the route home, except that appellant said, “You got your paper, and I didn’t get mine,” and then said he understood that it was because of the condition of the mail route; that when he got home he got out of the buggy without saying a word. And the same witness testified also: That on one occasion before he had been called on by appellant’s .wife to go and hunt him. He had gone off with a gun, and after searching for him for some time they found him standing in the field with a gun in his hand, and he would not give it up until one of the parties pretended he was going to shoot a rabbit, got the gun, and fired at the imaginary rabbit, and he then took the appellant home. That on another occasion appellant had come to him and said that his wife and mother had filed a complaint against a person named, and to prove it produced a paper’, which the witness examined and found to be a deed to lands. Without going into detail, this witness testified to many acts which indicated an abnormal mind. The witness said that there was a rumor that appellant’s mother accused his father of having improper relations with appellant’s wife, and that appellant told him about it; this conversation taking place the day of the homicide after appellant had stated that he had received the information from his sister that his father and mother had separated and that his wife .was the cause of it.

This conversation is the only thing we find in the record which would indicate that appellant knew of the rumor that was referred to in the cross-examination of Dr. Greenwood, except that of the witness H. A. Schram, who testified that there was such a rumor several years before the homicide, and that he thought appellant knew of it. It is quite doubtful whether this testimony or that of Schmidt would have been such evidence of appellant’s knowledge of the rumor as would justify admission in evidence. The inference from Schmidt’s testimony is more natural that he learned this in the conversation with his sister, and that of Schram is a mere opinion. We doubt the admissibility of this evidence under the circumstances. The rumor would manifestly not be admissible unless appellant’s knowledge of it was proved by dii’ect or circumstantial evidence. Considering the physical defects of appellant, such a rumor might have existed without his knowledge. Rumors are not admissible to prove facts. 16 Cyc. p. 1213; McLane v. Elder, 23 S. W. 757. Where known to a defendant in a criminal case, and where they relate to relevant matters, they may become admissible, and in this case we think would be admissible, if knowledge of their existence on the part of appellant' was satisfactorily shown in evidence. In connection with this bill, however, we will say that it does not show reversible error, even if the rumor was not admissible, for the reason that the same fact was proved without objection by another witness.

There are several bills preserved to the argument of counsel. One of these was a strong appeal to the jury to convict the appellant, even if they believed him to be insane. The Court in his very carefully prepared main charge had instructed the jury, if appellant was insane, or deranged to an extent that he was unable to know the difference between right and wrong as to the particular act in question, to acquit him. The argument amounted to an appeal to the jury to disregard this charge. At least it was subject to that construction. As quoted in the bill it was as follows:

“Gentlemen, you can go out and find this defendant guilty of murder and send him to the penitentiary, and the law is, if you send him to the penitentiary, he and his folks can call for a trial charging him with lunacy in the county court, and put him in the asylum if the jury find he was insane, because you cannot put an insane man in the penitentiary; but if you should turn him loose, how do you know he will ever be tried for insanity, and he might go back up where he lives and do the same thing over again, or .kill his children.”

The court, in his qualification of the bill, states that he regarded tbe argument as proper, based on the evidence in the case. This court, in a unanimous opinion written by Judge Ramsey, on motion for rehearing in the case of Smith v. State, reported in 55 Tex. Cr. R. 569, 117 S. W. 970, discussing the same question upon facts peculiarly similar to those involved in the present case, held that the argument required a reversal of the case, although there was a charge withdrawing it from the consideration of the jury. From that opinion we take the following quotation:

“As stated in the original opinion, the appellant made what seems to us to be a very strong showing of insanity. The facts of the burglary were proven beyond doubt. The only defense for all practical purposes was that of insanity. Therefore it was of the highest importance that this issue should have been, as it was, fairly submitted to the jury, and that in the discussion thereof there should have been no such departure from the rules of fair debate as would have illegally imperiled or weakened the defense. * * * The state’s attorney made the statement to the jury, as set out in the bill, as follows: T want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then these lawyers, like Stafford and Geddie, will be pleading insanity for everybody that is prosecuted; and if you are going to turn this defendant loose, you had just as well tear down your courthouse and burn your docket.’ ”

The discussion of the matter by the court in the opinion mentioned and the review of the authorities therein referred to aptly apply to the record in this case. Other cases in point are Crow v. State, 33 Tex. Cr. R. 270, 20 S. W. 209; Jenkins v. State, 49 Tex. Cr. R. 464, 93 S. W. 726, 122 Am. St. Rep. 812; Murmutt v. State, 67 S. W. 510; Patterson v. State, 60 S. W. 560. The opinion written in 'this case by the dissenting member indicates that the argument was made in response to an argument by appellant’s counsel. We fail to find this statement in the elaborate qualification of the bill.

Another point raised by this bill, as well as by bill No. 26, is that involving the rule of the trial court which prohibited the counsel for the appellant to make his objection to the improper argument of state’s counsel in open court, and requiring that such objection be made in a whisper t'o the trial judge. While the judge trying the case has large authority to make rules for the government of his court which are not inconsistent with statutory 'or constitutional provisions, or the rules' made by the Supreme Court, and it is highly commendable that such action should be taken, in order that decorum may be maintained, and that the litigants and attorneys may know in advance the rules they are expected to 'observe, we are inclined to believe, however, that in making and enforcing the rule in question the trial court exceeded his authority.

The right to be heard by counsel and a speedy public trial is guaranteed by the Bill of Rights. Article 1, § 10, Constitution. While recognizing the sound and wholesome discretion vested in the trial judge in the conduct of trials, the appellate courts have been careful in safeguarding these constitutional rights. Patterson v. State, 60 S. W. 560; Reeves v. State, 34 Tex. Cr. R. 484, 31 S. W. 382; Roe v. State, 25 Tex. App. 66, 8 S. W. 463; Lott v. State, 18 Tex. App. 631. The cases mentioned above, in which reversals have resulted from improper arguments, are but illustrative of the practice in this court, as will be indicated by numerous authorities cited under article 724, Vernon’s C. C. P. To bring the ruling of the trial court before this court for review, a bill of exceptions is generally required. Article 744, C. C. P. And this is true with reference to the argument of attorneys. Vernon’s C. C. P. p. 541, subd. 28, and cases cited. By articles 2066 and 2067, Revised Civil Statutes, provision is made for the preservation of a bill of exceptions showing the ruling of the court by the testimony of bystanders, where the counsel presenting the bill and the court fail to agree as to what proceedings took place. See decisions of this court construing these statutes. Vernon’s C. C. P. p. 558, subd. 39; Washington v. State, 58 Tex. Cr. R. 345, 125 S. W. 917; Wootem v. State, 57 Tex. Cr. R. 89, 121 S. W. 703.

It is self-evident that a compliance with the terms of these statutes would be impracticable under the operation of the rule referred to in the bill of exceptions under discussion. Under its operation none but the trial judge and the attorney whispering the objection to the -judge w’ould be in position to know what objections were made and to what subject-matter they related, or what ruling the court made thereon; so that if, in preparing a bill of exceptions, there was a disagreement, between the attorney and the trial judge as-to the terms of the objection, or its subject-matter or ruling, it would be futile for the attorney to call upon bystanders to settle the dispute, because they would be perforce of the nule in ignorance 'of the proceedings, and the litigant would be driven to accepting the bill of exceptions in the terms that the court prepared it, or consent to such qualification or modification of it that the c'ourt might make.

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). Appellant was convicted of the murder of his wife, and his punishment assessed at 15 years in the penitentiary. His only defense was that he was insane at the time he killed her. Appellant was about 48 years old when he killed' her. At the time they had six living children; the youngest about 2 years old, and the oldest perhaps 16 or 18. His wife was with child by him when he killed her. His claim was delusional insanity. In the course of several years before he killed his wife, it was shown by his parents and a few of his neighbors that he had some claimed delusions at intervals. These delusions, if so, however, were shown to have been at different times, considerable time elapsing between them, and as an illustration of how long these claimed delusions lasted at a time his father testified:

“At certain times I talked to him and conversed with him, and the next day maybe he would be in a rush and wouldn’t talk to you, and talking nonsense to you. He would get over that in a day, maybe two or three days, and then, when that was over, he would be as rational as any other man.”

■ He stuttered very badly áll of Ms life, so much, so that he could hardly talk, and when he did at all it was with difficulty. When he was young, his hearing was somewhat defective. When he was about 19 years old, he had measles, which affected his hearing thereafter materially, and from time to time until he killed Ms wife Ms hearing became more defective, éo much so that at the time he killed her, and for some time prior thereto, he was almost deaf, though, as his father testified, by getting close to him and talking loud he could hear some. He was a farmer; owned and lived 'on his own farm. He was a good worker; attended to his business of all character, just such as a man in his business and walk of life would daily attend to. A large number of Ms immediate neighbors, who had known him and associated with him from a few years to many years, testified in substance that he was sane ; that he was not insane, knew right from wrong, notwithstanding the difficulty of his talk and of his1 defective hearing.

His father and mother, had been married nearly 49 years and raised a family of children. A few years before he killed his wife he and his father lived for a while rather near, one another, though at the time of the killing and shortly prior thereto they lived perhaps several miles apart. On the mormng before he killed his wife that night, he went with one 'of Ms neighbors to an election and voted, returning home with this neighbor shortly before 12 o’clock at noon. In going he was as cheerful and communicative as usual. After they voted, in returning home he passed by one of his married sister’s. He got out of the buggy, went in her yard or house, and talked with her for a while. She then told him that their father and mother had separated, and that Ms wife was the cause of it. As a matter of fact, Ms father and mother had just separated and divided their property between them. He did not know this until his sister told him. For some time prior to this separation it was current in the neighborhood, known by their neighbors generally, that the relationship between his father and mother was strained, and it was because of Ms mother’s claim that improper relations had existed between his father and his wife. When Ms .sister told him that their father and mother had separated, and that his wife was the cause of it, it bothered and seemed •to have incensed him. Evidently, after reaching home from the election, the circumstances show that he must have informed his wife of the separation of Ms father and Mother, and that she was the cause of it, and he must have “fussed at” her about it from that time until he killed her about 9 o’clock that night. He did not testify. His daughter testified as follows:

“My name is Edna Weige. I am 11 years •of age. My mother’s name was Louise Weige. .My father’s-name is Otto Weige. My mother is now dead. I was at home bn the night of the' 26th of August, 1916, when my mother, Louise Weige,. was shot. Besides my mother, and I, August, Herbert, and Jesse were at home that night. August is 8 years old, Herbert 5 years old, and Jesse 2 years old. My father, Otto Weige, was at home that night. When I went to bed, my father was sitting on the porch, and my mother was sitting in a chair, and after-wards went to bed. My mother first sat on the porch, and then she was sitting in the room. After I went to bed, my mamma woke me up.. My mother told me that my father had shot her, and I got up. My father shot my mother ’ one time after I got up. He shot her with a rifle, aud hit her one time on the arm with the rifle.”

Cross-examination:

“After my father shot my mother, he went in the room and sat down, and sat there a long time. He did not sit there until the neighbors' came, but he ran around in the hall. He did-not light his pipe and smoke. He was not out ou the porch smoking his pipe when the neighbors came. My mother phoned to the neighbors after she was shot. She phoned to • Mr. ■ Schmidt. Two others came there with ML Schmidt. They came a long time after my mother was shot. It was about an hour befme they came. After the shooting, my father and ■ mother went on the porch and stayed a minute. My father -put the gun back upon the wardrobe. That is where the gun stayed. From the time of the shooting up to the time the neighbors came, my mother did not say anything, but my father was fussing. He was in the same room with my mother. My mother was laying down on the bed. She was in bed just a part of the time. My father did not say anything to my mother about phoning the neighbors. He did not try to get her away from there. He did not try to put the shooting on somebody else.”

Redirect examination:

“When my mother went to- the telephone, my father tried to keep her from phoning. He ran her away. I do not know what my father and mother were fussing about. I have a brother named Oscar Weige and a sister named Dora Weige. Both of them are older than me. On that night they were at Star Hill' at a dance.”

Tlie state proved up and introduced the dying statement of Ms wife. This much of it - was in writing:

“My husband, Otto Weige, shot me. I was in -bed, lying down asleep, when he shot me, and the shot woke me up. He first shot me in the head, then ini, the leg, and then in the stomach. I tried to get out of the door, and he hit me with the gun; it was a .22 rifle. My husband had been to the election, and came home, and he told me that his father and mother were going to part, and he said I was the cause of it. That was the only reason why he shot me that I know of. He shot me about 10 o’clock at night, Saturday night.”

In addition, the county attorney, who took the written dying declaration, further testified that at the time she made, and he wrote out, and he and others witnessed, said written dying declaration, Mrs. Weige also stated that, after her husband came home from the election, they sat out on the gallery, and he was fussing at her. “She said he was fussing about his father and mother separating.”

The doctor testified that Mrs. Weige was shot in the top of her head, through the skull, into the brain tissue; another sh'ot was just below the navel, the-other in the right leg, and that there was a big bruise on her left arm; that the shot through her stomach went through the foetus, and shortly before she died she gave birth to this foetus. She died about 11 o’clock on the morning of the second day after she was shot the night before.

Appellant has some 26 bills of exception. A large number of these were to the refusal of the court to give his respective special charges. A large number of the others were complaints1 of the argument of the district attorney. It is unnecessary to state or discuss most of these matters, as they present no error.

The evidence from no standpoint showed, or tended to show, that appellant was afflicted with any character of permanent insanity. At most it tended to show some claimed delusions by him from time to time, considerable time elapsing even between these. Hence the court did not err in refusing to charge that, if appellant was shown to have been insane at any time before the killing, the legal presumption was that such insanity continued, and he was affected thereby at the time of the killing. Such is not the law. It will not be amiss to here state the principles of our law on the question of insanity, as established by the uniform decisions of this court and the authorities. These principles are so tersely stated and the authorities collated in 1 Vernon’s Ann. Grim, Stats, p. 18 et seg., they will be copied therefrom as follows:

“The law does not require, as the condition on which criminal responsibility shall follow the commission of crime, the possession of one’s faculties in full vigor, or a mind unimpaired by disease or infirmity. The mind may be weakened by disease, or impaired, and yet the accused be criminally responsible for his acts. The accused can only discharge himself from responsibility by proving that his intellect was so disordered that he did not know the nature and quality of the act he was doing, and that it was an act which he ought not to do. If he had sufficient intelligence to know what he was doing, and to know that the act was wrong, and had the will and power to refrain from doing it, he is, in contemplation of law, responsible for the act committed. The rule adopted in this state as to the character of insanity which will exempt from responsibility for' crime, is that at the time of committing the crime the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know he was doing wrong. The inquiry should be directed to his knowledge of .right and wrong, with respect to the. very act with which he is charged. Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Webb v. State, 5 Tex. App. 596; Williams v. State, 7 Tex. App. 163; Clark v. State, 8 Tex. App. 350; King v. State, 9 Tex. App. 515; Warren v. State, 9 Tex. App. 619, 85 Am. Rep. 745; Johnson v. State, 10 Tex. App. 571; Pettigrew v. State, 12 Tex. App. 225; King v. State, 13 Tex. App. 277; Thomas v. State, 40 Tex. 60; Erwin v. State, 10 Tex. App. 700; Burkhard v. State, 18 Tex. App. 599; Powell v. State, 37 Tex. 348; Jones v. State, 31 Tex. Cr. R. 252, 20 S. W. 578; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905; Walker, Ex parte, 28 Tex. Cr. R. 246, 13 S. W. 861; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811; Frizzell v. State, 80 Tex. App. 42, 16 S. W. 751; Lacy v. State, 30 Tex. App. 119, 16 S. W. 761; Lovegrove v. State, 31 Tex. Cr. R. 491, 21 S. W. 191; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21; Lowe v. State, 44 Tex. Cr. R. 224, 70 S. W. 206; Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124; Rusk v. State, 53 Tex. Cr. R. 338, 110 S. W. 58; McConnell v. State, 22 Tex. App. 354, 3 S. W. 702, 58 Am. Rep. 647; Massengale v. State, 24 Tex. App. 181, 6 S. W. 35; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591; Riley v. State (Cr. App.) 44 S. W. 498; Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351; Griffith v. State, 47 Tex. Cr. R. 64, 78 S. W. 347; Kirby v. State, 49 Tex. Cr. R. 517, 93 S. W. 1030; Kelley v. State, 51 Tex. Cr. R. 151, 101 S. W. 230; Hogue v. State, 65 Tex. Cr. R. 539, 146 S. W. 905; Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627; Woods v. State, 67 Tex. Cr. R. 569, 150 S. W. 633; Montgomery v. State, 68 Tex. Cr. R. 78, 151 S. W. 813; Witty v. State, 75 Tex. Cr. R. 440, 171 S. W. 229.
“The test of insanity is confined to the capacity to distinguish between the right and wrong of the particular act, and does not go to the capacity and will power of person affected with insanity to restrain his actions. Hurst v. State, 40 Tex. Cr. R. 382, 46 S. W. 635, 50 S. W. 719.
“There are no degrees of insanity as a criminal defense; one’s guilt being tested by the question whether he knew the nature and quality of his act. Kirby v. State, 68 Tex. Cr. R. 68, 150 S. W. 455. * * *
“Insanity must have controlled the will and taken away the freedom of moral action. Witty v. State, 75 Tex. Cr. R. 440, 171 S. W. 229.
“Insanity merely exempts the accused from punishment, without exonerating him from the charge of committing the offense. Witty v. State, 75 Tex. Cr. R. 440, 171 S. W. 229. * * *
“Every person is presumed to be of sane mind, until the contrary is shown. Carter v. State, 12 Tex. 500, 62 Am. Dec. 539: Fisher v. State, 30 Tex. Cr. R. 502, 18 S. W. 90 (following Webb v. State, 5 Tex. App. 596; s. c., 9 Tex. App. 490); King v. State, 9 Tex. App. 515; Massengale v. State, 24 Tex. App. 181, 6 S. W. 35; Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 731.
“If insanity be proved to have existed at any particular period, it is ordinarily presumed to have continued. But this is the rule where the insanity proved is of a permanent char'acter. Where the insanity is temporary or recurrent, such presumption does not prevail; hut, on the contrary, in such case, the law presumes the offense of such persons to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper. Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Webb v. State, 5 Tex. App. 596; Smith v. State, 22 Tex. App. 316, 3 S. W. 684; Hunt v. State, 33 Tex. App. 252, 26 S. W. 206; Nugent v. State, 46 Tex. Cr. R. 67, 80 S. W. 84; Sims v. State, 50 Tex. Cr. R. 563, 99 S. W. 555; Wooten v. State, 51 Tex. Cr. R. 428, 102 S. W. 416; Witty v. State, 69 Tex. Cr. R. 125, 153 S. W. 1146. * * * “Accused has the burden of proving insanity by a preponderance of evidence. Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Hurst v. State, 40 Tex. Cr. R. 388, 46 S. W. 635, 50 S. W. 719; Boren v. State, 32 Tex. Cr. R. 637, 25 S. W. 775; Webb v. State, 5 Tex. App. 596; s. c., 9 Tex. App. 490; King v. State, 9 Tex. App. 515; Johnson v. State, 10 Tex. App. 571; Jones v. State, 13 Tex. App. 1; King v. State, 13 Tex. App. 277; Mendiola v. State, 18 Tex. App. 462; Smith v. State, 19 Tex. App. 95; Fisher v. State, 30 Tex. App. 503, 18 S. W. 90; Lovegrove v. State, 31 Tex. App. 491, 21 S. W. 191; Stanfield v. State, 50 Tex. Cr. R. 69, 94 S. W. 1057; McCullough v. State, 50 Tex. Cr. R. 132, 94 S. W. 1056; Fults v. State, 50 Tex. Cr. R. 502, 98 S. W. 1057; Kirby v. State, 68 Tex. Cr. R. 63, 150 S. W. 455; Welch v. State, 71 Tex. Cr. R. 17, 157 S. W. 946; Douglas v. State, 73 Tex. Cr. R. 385, 165 S. W. 933; Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 731.”

The court properly submitted the question of appellant’s insanity in a charge on that subject in accordance with the said decisions and principles applicable to such question, taken from charges frequently approved by this court. No others on the subject were called for or would have been proper.

The evidence did not raise, and therefore the court did not err in refusing to submit, manslaughter.

Appellant’s contention that the separation of his father and mother was caused by his father’s illicit relations with his wife was a delusion on his part. He objected to the testimony of the witness Boelcher to the effect that he had heard five or six years before the killing, in the neighborhood where appellant and his father lived, a rumor of illicit relations between his father and his wife, and that the report was that his mother and his father had several quarrels in regard to his father seeing his wife. The court’s qualification of his bill on this subject was that the fact of his killing his wife was not controverted, and that his only defense was insanity; that his expert witness Dr. Greenwood, as an expert, testified that in his opinion appellant was suffering from delusions or false beliefs, and did not know right from wrong; that among other hypothetical questions propounded to said doctor, he testified, “I judge from the testimony it was purely a delusion:” and further he stated, “If it was a general rumor, and the defendant heard it and believed that that was the real cause why his mother and father separated, that would not be a delusion;” and that he admitted the testimony of Boelcher on this point to meet the testimony of this expert witness, and in addition he stated that Mr. Schmidt, the neighbor who went with appellant to the election that day and took him back home, testified that after appellant had talked with his sister, and learned the fact that his father and mother had separated, appellant said that his (defendant’s) wife was the cause of the separation, and that Mr. Schram, another witness, also testified fully about the rumor, and Mr. Schram also testified in substance that appellant knew of this rumor. All of this testimony, under the circumstances and the claim of appellant, was clearly admissible.

It is unnecessary to state appellant’s bills to the argument of the district attorney, other than Nos. 24 and 25, as none of them, as qualified by the trial judge, show any error. But we will here give in full his bills 24 and 25, and the court’s qualification, omitting the headings of them, which are merely the style and number of the cause, the term of court, and the usual “Be it remembered.” His bill 24 is:

“The following proceedings were had: While the district attorney was making his argument to the jury, he used the following language, to wit: ‘Now, if you turn him loose, what is going to become of defendant’s little children? Are you going to try him again for lunacy? He has been tried for lunacy, and the commission found him sane.’ To which language and remark of said district attorney to the jury the defendant, by his attorneys, then and there in open court duly objected: (1) Because that verdict cannot and should not have any influence upon this jury; (2) because it is not shown that the evidence upon the lunacy trial and this trial is the same; and (3) because the fact that the lunacy commission found him sane should not influence this jury in arriving at its verdict, and should not be taken into consideration by this jury in arriving at its verdict. Which objections were by the court overruled, to which action of the court in overruling said objections the defendant, by his attorneys, then and there in open court excepted, and now here tenders this his bill of exceptions No. 24, and prays that the same be examined, approved, and ordered filed as a part of the record in this case.”

The court, before approving this bill, qualified and explained it as follows:

“The above expression by the district attorney was used in answer to argument of counsel for defense, and specially in connection with the testimony of defendant’s expert witness Dr. Greenwood, who said the defendant in his opinion should not bo released under any circumstances, should be confined for life, he was a menace to society, and further testified about the inadequate laws relating to the insane of the state; all of his testimony being admitted without objection. The former lunacy trial of this defendant and facts relating thereto was admitted without objection; ' thought it proper for the district attorney to comment on testimony in record and the inadequate laws of the state-relating to the insane. But in this instance, as with all other objections urged by counsel to remarks of district attorney, at the conclusion of his remarks and at the special request of defendant’s counsel, I instructed the jury not to-consider the argument of the district attorney not based on the evidence and on the issues submitted in the charge, and not to consider any law or issue except those given in the charge, and determine those issuos from the evidence adduced upon the trial under that charge, and not consider what effect the verdict of the jury would have upon the state or defendant.”

His bin 25 is:

* “The following proceedings were had: While-the district attorney was making his closing argument to the jury (inter alia) he used the following language, to wit: ‘Gentlemen, you can go out and find this defendant guilty of murder and send him to the penitentiary, and the law is, if you send him to the penitentiary, he and his folks can call for a trial charging him with lunacy in the county court, and put him in the asylum if the jury find he was insane, because you cannot put an insane man in the penitentiary; but, if you should turn him loose, how do you know he will ever be tried for insanity, and he might go back up where he lives and do the same thing over again, or-kill his children.’ To which language and remarks of the district attorney defendant’s counsel undertook to object, and as his attorney arose from his seat and addressed the court, making' his objections or attempting to make his objection, the court refused to hear the objection and ordered the attorney to take his seat; said attorney protesting, saying that he thought that he was within his rights and that he knew no other way to make said objection, except by calling upon the court to stop the district attorney and hear his objection. The court ordered the sheriff to seat counsel, and threatened counsel, if he persisted in making said objection, that he would place a fine upon counsel. That counsel, if permitted, would have assigned as a reason for said objection that said argument, especially the closing argument, would be potential as affecting the rights of this defendant before the jury. That there was nothing in the testimony, nor in the court’s charge, that gave to the district attorney the right to make that statement. That the only inquiry, so far as the jury was concerned, was as to whether or not the defendant at the time of the homicide was of such mental capacity as to know the difference between right and wrong. That the jury might be and would likely be influenced in the consideration of their verdict by said statement of the district attorney. The court refused to hear counsel upon his objections, and permitted the district attorney to continue his argument, and refused, after the argument of the district attorney, to specifically withdraw said remarks from the jury, which said remarks were highly prejudicial to the rights of the defendant, as finally shown by the verdict of the jury. To the action of the court in refusing to hear counsel’s objection, and his failure to instruct the jury net to conaMer same, the defendant excepted in open court, and here now tenders this his bill of exception No. 25, and prays that the same be examined, approved, and ordered filed as a part of the record in this case.”

Before approving this bill, the court qualified and explained it as follows:

“The same qualification made to bill No. 24 is applicable to said l'emarks of district attorney as set out in.this hill, and is made a part of this qualification. This bill states two objections: (1) To argument of district attorney; (2) to action of court. O. G. Krueger and J. M. Mathis were counsel for defendant in this case. After they had concluded their arguments to the jury, and the district attorney had begun his closing argument, J. M. Mathis retired from the courtroom to the jury room adjoining, and Krueger remained in the courtroom and advised the court that he was going to take exceptions to remarks of district attorney. I then proceeded to give special attention to the closing argument of the district attorney, and according to rules governing trials and arguments before juries in my courts, exceptions were taken by him to remarks of district attorney as set out in bills Nos. 19, 20, 21, 22, 23, and 24, without any objection upon his part, as such rule was well known to him and to J. M. Mathis that objections should be taken privately before the judge, without interruption to the speaker, and, if the court was of opinion that speaker should be stopped, the interruption would be made by the court, instead of counsel. While the district attorney was discussing the record and testimony admitted without objection, and was making the above statement to the jury, J. M. Mathis appeared at the door leading from the jury room to the courtroom, and from that position, and not within the bar, addressed the court and in a very loud voice interrupted the district attorney for the purpose of taking a bill of exception. He was advised not to interrupt the district attorney in that manner, but take his exception according to the rule of this court. The request of the court was wholly ignored, and counsel again proceeded to tell the court about his rights, ‘and that he wanted to take his bill of exception in his own way. Great interest attended this trial, and the courthouse was filled with people, and under the circumstances it appeared to me, from my personal knowledge of Mr. Mathis, that his real purpose was to make another short speech to the spectators and jury. I have little patience with interruption of court proceedings with such practice, and I ordered counsel to be seated, as his co-counsel, Judge Krueger, was reserving exceptions to argument of district attorney, and when he refused, and persisted in making further argument, I ordered the sheriff to seat the gentleman, and announced, if he repeated such conduct, I would assess a fine against him. Mr. Mathis took his seat, and the incident was closed, and the district attorney was permitted to conclude his argument without further interruption, and the trial was concluded in an orderly manner. Objection was reserved to the above remarks of the district attorney by O. G. Krueger, and in such matters I do not require any formality, except to know that the exception was taken. This remark was upon the law as it is written, which every one is presumed to know. Theso matters had been admitted in evidence without objection, and in the light of this record I was not able to see how said remarks infringed upon the rights of the defendant; but at the request of the counsel for defendant that X verbally instruct the jury to disregard the remarks of the district attorney, immediately after the district attorney had concluded his remarks, I instructed the jury not to consider for any purpose the argument of the district attorney, nor conclusions stated by him, not based upon the testimony adduced upon the. trial, and to consider no law or issue except that given in the charge of the court and upon evidence adduced upon the trial alone, nor consider what effect their verdict might have upon the state or upon the defendant, and not consider remarks of court or counsel on objections taken for any purpose, but to bo governed solely and alone by the law as given in the charge, and under this law render their verdict from the evidence given them from the witness stand. No written requested instructions were asked, and by agreement verbal instructions were given.”

These bills, as qualified and explained by the court, were accepted by appellant, and the authorities are all to the effect that, when this is done, appellant is bound thereby. The trial judge, had no right or legal power to make a rule, or enforce it, to the effect that, when the accused wants to object to the argument of the prosecuting attorney, the prosecuting attorney must not be interrupted, but the objection must be made privately to the judge himself. On the contrary, it is the right of the accused’s attorney, with the proper decorum and in a proper way, to make Ms objections, so that they can be heard at the time by the prosecuting attorney, and even the jury. Of course, it is assumed that the accused’s attorney will do this in an orderly manner, and at no time make frivolous objections, or objections to proper and legitimate argument; and it is the duty of the trial judge, at the time when such objections are so made, to then rule upon the question, and if the prosecuting attorney is out of the record, or making improper' argument not based on the testimony in the case or deductions-therefrom, it is the duty of the court to then, pass upon the question, reprimand the attorney, if necessary, and then instruct the jury to wholly disregard such illegitimate or improper argument by the prosecuting attorney, and not wait until after the close of the argument, and then rule upon the question.

In the opinion of this writer, these bills, and neither of them, show any such error as would legally authorize or justify this court to reverse and remand this cause. In his opinion, the judgment should be affirmed, and not reversed. It is unnecessary, as he sees it, to discuss the question or cite the authorities. It has always heretofore been held that, when the state’s attorney 'in his argument is replying to an accused’s attorney’s argument, he has no cause to complain. He cannot make an improper argument, and thereby invite the state’s attorney to reply thereto, and then, if he does, take advantage of his own wrong and complain. 1 Branch’s Ann. P. C. § 363, where he collates a large number of cases. And see Mooney v. State, 76 Tex. Cr. R. 649, 176 S. W. 52, and the rules there shown, and-the cases there cited and discussed. The bills, together with the qualification of the judge, in his opinion, show no error.

The judgment should not be reversed, but affirmed.
      <S=»Eor other tases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    Ex parte BOSTICK.
    (No. 4527.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Affidavits &wkey;>© — Bill of Exceptions— Oath Before Attorney.
    A purported bystanders’ bill of exceptions sworn to before the defendant’s attorney was not properly verified and cannot be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    2. Habeas Corpus <&wkey;25(l) — Right to Writ.
    Where one indicted for gaming gave bail bond which was declared forfeited, and he thereafter, being in jail, offered to plead guilty, but the plea was refused, ho was not entitled to discharge on writ of habeas corpus.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 21, 28, 30.]
    3. Criminal Law &wkey;>273 — Plea of Guilty— Refusal to Accept — Continuance — Effect.
    The mere fact that a criminal case has been continued for the term is not sufficient ground for refusing to take a plea of guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634.]
    4. Criminal Law &wkey;980(l) — Plea of Guilty —Necessity of Evidence.
    In a prosecution for the small misdemeanor of gaming, evidence is not required under plea of guilty as in felony cases.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2493, 2496.]
    5. Criminal Law &wkey;273 — Plea of Guilty— When Taken.
    The court, when an accused is confined in jail without trial, and especially when he wants to plead guilty to a misdemeanor, ought to accept the plea.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634.]
    Appeal from Rockwall County Court; James W. Reese, Judge.
    Habeas corpus on the relation of Frank Bostick. From an adverse judgment, the relator appeals.
    Case dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

The record discloses that the grand jury returned an indictment charging relator with gaming. It was transferred to the county court. When the case was called in the county court, relator not responding, his bond was forfeited. Later, perhaps the same day, he was rearrested and placed in jail. He applied for a writ of habeas corpus, which was granted. It recites after the forfeiture of the bond, and when court had adjourned for the day, and the judge was in his office, he was brought, at his own request, before the county judge to enter a plea of guilty. The judge declined to hear his plea without the consent of the county attorney, who was present. The county attorney declined, and the judge gives as his reason for not hearing the case that it had been continued for the term, and the county attorney would not consent to take it up. He refused to make any order in the case, or to place anything upon the minutes of his court; at least such is the recital in a bill of exceptions undertaken to be proved up by by-standers.

The bystanders signed and swore to the bill, but they took their oath' before the attorney in the ease. Under the long line of authorities of the Supreme Court and Court of Criminal Appeals this does not verify the bill in such manner as it can be considered. Outside of the bill of exceptions, we find no notice of appeal in the transcript. It is a peculiar case in several respects.

The theory evidently of relator was that by resorting to the writ of habeas corpus, the judge having refused to take his plea of guilty, he would be entitled to his discharge. As presented by this record, we think that could not be of sufficient importance to make that demand. However, it is worthy of some remark or expression of wonder that the plea of guilty was not taken. The party was in jail and was desirous of pleading guilty.

The mere fact that the case had been continued for the term is not a sufficient reason for not taking the plea of guilty. It was a small misdemeanor, and evidence was not required as in felony cases under a plea of guilty. But as the matter is presented we do not think we can give relief asked.

The court, of course, when an accused is confined in jail without trial, and espeeially when he wants to plead guilty, and it is a misdemeanor, ought to accept the plea of guilty. Just why this.was not done is not shown, except the judge states that he did not accept the plea because the case had been continued. There was no order entered continuing the case, but there was an order entered forfeiting the bond.

As the case is presented, we find no sufficient reason why the applicant should be discharged, but cases may arise when such prayer may be granted.

The case is dismissed.
      T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REYES v. STATE.
    (No. 4481.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Ceiminal Daw <&wkey;1092(6), 1099(5) — Pbes-ENTATION BOB REVIEW — EVIDENCE.
    Evidence heard by the trial court on any motion of an accused will not be considered by the Court of Criminal Appeals unless preserved either by bill of exceptions or a statement of facts approved and filed during term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847.]
    2. Receiving Stolen Goods <&wkey;7(3) — Indictment — Idem Sonans.
    That the surname of the person from whom it was alleged in the indictment that defendant received stolen property was written “Espnosa” instead of “Espinosa” did not make the indictment fatally defective, though there was evidence that the two words could not be pronounced alike or be pronounced without confusion,and that the word “Espnosa” had no pronounceable sound in Spanish, where there was no evidence as to how such person spelled his name, or that his name was Spanish, and it appeared that defendant could not have been misled by the spelling.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 11.]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Peter Reyes was convicted of receiving stolen goods and appeals.
    Affirmed and rehearing deified.
    W. M. Atkinson and W. T. Miller, both of Gonzales, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of receiving stolen property, and his punishment assessed at the lowest prescribed by law.

The indictment is regular, and follows the approved form and statute. It alleges that appellant unlawfully and fraudulently received one horse from Modesta Espnosa belonging to Chas. Webber and which had been acquired by said Modesta Espnosa in such manner as that the acquisition there'of came within the meaning of the term “theft,” and that at the tima he received it he well knew it had been so acquired. The evidence was amply sufficient to sustain the conviction. It is unnecessary to recite it. The indictment was preferred January 10, 1917. The names upon whose testimony the indictment was found were indorsed thereon, and among them was Modesta Espnosa. The theft of the horse was alleged to have been on August 2, 1916. The case was regularly called for trial on January 25, 1917. Appellant then made a motion to postpone the trial for two days, or for such length of time as that he could be properly served with a copy of the indict-, ment two days before the trial. His motion on this subject is very full. The material allegations thereof will be fully stated. He alleged therein that said indictment was preferred and filed January 10, 1917; that he was arrested thereunder on the next day while at his home 20 miles from the county seat and taken by the officer to the county seat and confined in jail continuously from that time to his trial; that no copy of said indictment had been served upon him or delivered to him, and that he had never waived such service or copy; that on August 2, 1916, he had been arrested on a complaint then charging him with theft of a mare, the property of one Krause, and that on August 22d following, when he had an examining trial before the justice of the peace, he was bound over and entered into a bail bond to appear before the grand jury of said county at the January term following; that the said grand jury did not indict him for that alleged offense; that he had executed no other bail bond, nor been on bail at any time except on said charge; that on January 12th D. W. Wright, a constable of a certain precinct of said county, delivered to him an instrument in writing purporting to be a certified copy of the indictment herein, and purporting t3 be certified by the clerk of said court. He attached and made an exhibit to his motion said copy. This copy is a literal copy of the indictment herein, with the sole exception that the name “Espnosa” has an “i” inserted in it between the letters “p” and “n,” so that said name in the indictment “Espnosa” is spelled in this copy “Espinosa.” The clerk’s certificate to the said copy on its face is regular, full, and complete in every particular, certifying that it was a true and correct copy of the original bill of indictment, etc., and concludes:

“Given under my hand and official seal at my office in Gonzales, Texas, this 11 day of January, A. D. 1917. T. G. Goss, Clerk, District Court, Gonzales County, Texas.”

He further alleged that no part of said copy or certificate was written by said clerk, and that the clerk’s name thereto was not written by him, but that the whole was written by O. P. Chena'ult, a deputy sheriff of said county, and he was not a deputy for said clerk, that said copy was not attested by the seal of said court, and that no seal appeared on it. Then he alleged the sole difference between the original indictment and the said copy served on him was that the letter “i” was used in spelling the word “Espnosa,” as shown above; that no copy of said indictment made out or written- by the clerk or by his deputy, if any he had or by any one else authorized or permitted by law to act for him, had ever been served upon or delivered to appellant; that said copy is the same instrument referred to in the purported sheriff’s return' (“B. Neighbors, Sheriff, Gonzales County, Texas, by L. W. Wright, Deputy”), among the papers of this cause, and indorsed on an instrument purporting to be a precept to serve a copy of the indictment on him, but to which no seal of said court is affixed; that said Wright was not, and never was during January, 1917, a deputy of said sheriff, and said return, including the signature thereto, was written and signed by said Chenault, and not by said Wright. All these averments in his motion were mere allegations. They were not evidence at all, but they had to be proven by proper testimony, just like any other allegation had to be proven, and appellant undertook to prove them. The indictment and all the other papers filed therein were numbered 3847, and properly styled the cause as, “The State of Texas v. Peter Reyes.” At the time this motion was presented in the lower court, the trial judge heard the evidence then introduced by appellant to support the allegations of his motion, and upon hearing this evidence overruled his motion. The term of court at which this trial occurred adjourned January 29, 1917. Appellant’s bill of exceptions presenting this matter and purporting to contain a statement of the evidence introduced and heard by the trial judge at the time he acted on his motion was not filed during term time. Said evidence is in no other way attempted to be shown by this record. His said bill presenting it expressly shows on its face that it was prepared by him in vacation after the said term of court had adjourned, and not till February 23d; that it was on that date presented to and acted upon by the trial judge and filed in said court the next day.

It has always been held by this court, in an unbroken line of decisions down to this very date, that whenever the trial court hears testimony on any motion of an accused it is essential that such evidence shall be preserved either by bill of exceptions, or a statement of facts on that matter, and that in either event the bill preserving it, or such statement of facts, shall be approved and filed during term time, and that unless it is so preserved and filed in term time this court cannot consider the question, and that this court must conclusively presume that the action of the judge in overruling such motion was sustained, or appellant’s allegations were not established, by such testimony. Some of these cases will here be collated. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State; 52 Tex. Cr. R. 59, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 550, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996; Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726; Ethridge v. State, 74 Tex. Cr. R. 638, 169 S. W. 1152; Marshall v. State, 5 Tex. App. 273; Hicks v. State, 75 Tex. Cr. R. 430, 171 S. W. 755; Sorrell v. State, 186 S. W. 338; Sharp v. State, 6 Tex. App. 650. Mr. Branch, in his 1 An. P. C. § 598, cites these additional cases on this point, aud also some of the above: Sandoloski v. State, 65 Tex. Cr. R. 33, 143 S. W. 155: Treadway v. State, 65 Tex. Cr. R. 208, 144 S. W. 658; Washington v. State, 66 Tex. Cr. R. 360, 147 S. W. 276; Crowell v. State, 66 Tex. Cr. R. 537, 148 S. W. 570; Gotcher v. State, 60 Tex. Cr. R. 522, 148 S. W. 574; Clary v. State, 68 Tex. Cr. R. 290, 150 S. W. 919; Maxwell v. State, 69 Tex. Cr. R. 248, 153 S. W. 324; Bryant v. State, 69 Tex. Cr. R. 457, 153 S. W. 1156; Decker v. State, 69 Tex. Cr. R. 410, 154 S. W. 566; Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Johnson v. State, 71 Tex. Cr. R. 620, 160 S. W. 695; Hoskins v. State, 73 Tex. Cr. R. 107, 163 S. W. 426; Dukes v. State, 74 Tex. Cr. R. 300, 168 S. W. 96; Hemphill v. State, 75 Tex. Cr. R. 63, 170 S. W. 154.

As this point, under the circumstances, cannot be considered, it is unnecessary to show that by the decisions of this court the variation in spelling the name of “Espnosa” by inserting the “i” therein and the manner of certifying and service of said copy on appellant would present no reversible error. But on this point see Johnson v. State, 4 Tex. App. 268; Barrett v. State, 9 Tex. App. 33; Hargrove v. State, 51 S. W. 1124; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089, and cases there eited in the note; and other authorities of this state.

His bill 6 shows that he objected to the court’s charge as follows: Because it is on the weight of the evidence, in that the indictment charges him with receiving said alleged stolen horse from one “Modesta Espno-sa,” whereas the evidence only shows, and tends to show, that said horse was received by him from one “Modesta Espinosa,” and the court’s charge assumes as a matter of law and fact that said names are idem sonans, whereas under the evidence it is a question for the decision of the jury (under proper instructions from the court) as to whether such names are idem sonans.

As it pertains to the same matter, his tenth bill will be stated and considered also. In that he complains that the court refused to give his special charge, which was in this language:

“If you believe from the evidence that the name of the party alleged to be the person from whom the defendant received the property alleged to have been stolen is different in sound from the name alleged in the indictment, to wit, Modesta Espnosa, you will acquit the defendant.”

The court, in approving bill 6, explained and qualified it by stating:

. “The person named Modesta Espnosa in the indictment was upon the stand, and he was not asked how he spelled his name; hence the issue of variance or of idem sonans is not raised.”

In his qualification and explanation of No. 10 he stated:

“Therp was no evidence in the ease as to how Espnosa spells his name, and therefore there is nothing upon which to base the requested charge.”

The court’s qualification in each instance was true as shown by the statement of facts and record.

In the charge, the court, as is usual, told the jury succinctly that appellant was on trial charged with receiving from Modesta Espnosa one horse which had theretofore been acquired from Chas. Webber by said Espnosa in such manner that the acquisition conies within the definition of theft, and that appellant fraudulently received and concealed said horse, then and there well knowing the same to have been acquired by theft, and that appellant had pleaded not guilty. He then charged, as is usual, the presumption of innocence of appellant until his guilt was established by legal evidence beyond a reasonable doubt, and, if they had such doubt of his guilt, to acquit him; also that they were the exclusive judges of the facts proven, weight to be given the evidence and the credibility of the witnesses; then defined theft as prescribed by the statute, and submitted the case to the jury for a finding, as follows:

“If you find from the evidence that the horse mentioned in the indictment had been acquired from the said Webber by Modesta Espnosa in such manner as that the' acquisition thereof comes within the above definition of theft, and that thereafter, on or about the 2d day of August, 1916, in Gonzales county, Tex., the defendant did fraudulently receive said horse from .the said Modesta Espnosa, and that when he so received said horse, the defendant knew it had been stolen, you will find the defendant guilty of fraudulently receiving a stolen horse as charged in the indictment, and assess his punishment at confinement in the penitentiary for any term not less than two nor more than ten years.”

In the next paragraph he told them that the witness Modesta Espnosa was an accomplice, and required his testimony to be corroborated aS| required by the statute, and in a charge which has many times been approved by this court and to which as such no objection was made. It it unnecessary to further state the charge. The charge was not upon the weight of the testimony, but was just such charge as should have been given, and was applicable to the law and the testimony.

It is true appellant introduced a Catholic priest named Eggers, who had lived in Gonzales for a few years, and said he was a native of South America and spoke the Spanish language, which was his native language; that generally the Mexicans speak some kind of a Spanish language; that it was not really the Spanish, but generally the basis for the Mexican language was the Spanish. He said: “The word ‘Espnosa’ does not look like a Spanish name to me.” He then told that they had in Spanish the name “Es-pinosa,” and that he thought that should be the real spelling of it. He said: “There is no such word as ‘Espnosa’ in Spanish; it might be in another language.” He said: That the word “Modesta” was a feminine name in Spanish, and was never used as the name of a male. That in the Spanish the name of a man finishes in “o,” and that the “o” distinguishes the masculine from the feminine, when the word ends in “a.” That ordinarily in conversation the words “Modesta” and “Modesto” could be distinguished, because in the iSpanish language they had no half sounds, but full sounds, and that each letter is fully pronounced. “But sometimes they don’t pronounce them quite clear, but it is easy to ask and find out.” That the word “Espnosa” had no pronounceable sound in Spanish, because three consonants came together, and that in the Spanish they had no sound like “Espn” and could not say “Esp” either, “because we have no way of pronouncing them in Spanish;” that in! common parlance the words “Espnosa” and “Espinosa” could not be pronounced alike, and he thought they could not be pronounced without confusion.

There is no intimation in this case that Modesta Espnosa was a Spaniard, or that his name was a Spanish name, and, as stated by the judge in his qualification, there was no testimony at all in this case as to how said Modesta Espnosa spelled his name. For aught that appears he spelled his name precisely as it was given in the indictment and the judge’s charge, and not otherwise. Even if it could be contended with any show of reason that Modesta Espnosa’s name was incorrectly spelled, and that the letter “i” should have been inserted between the letters “p” and “n,” that they were both in fact and in law idem sonans cannot be questioned under the authorities.

This court, in Henry v. State, 7 Tex. App. 3SS, quoted and expressly approved what the Supreme Court of Alabama said in Ward v. State, 28 Ala. 53, as follows:

“The books abound in hairbreadth distinctions, but we apprehend the true rule to be that if the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial.”

That doctrine has been repeatedly held and applied in many cases in this state.

In discussing the idem sonans of names, this court, in Rowan v. State, 57 Tex. Cr. R. 634, 124 S. W. 673, 136 Am. St. Rep. 1005, said:

“Mr. Abbott, in bis Trial Brief, § 6S0, lays down tlie following rule: ‘A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense.’ And Mr. Rice, in his valuable work on Evidence, lays down the following rule: ‘There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common-law technicalities, and hold rather to substance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem so-nans has been much enlarged by modern decisions, to conform to the above salutary rule. The law does not treat every slight variance, if trivial, such as the omission of a letter in the name, as fatal. The variance should be a substantial and material one to be fatal.’ See section 128, vol. 8. It may be said to be wholly immaterial as to how the word is spelled. If practically they have the same sound, they will be regarded as idem sonans, and if the words have the same sound, then there is no fatal variance, although the two names may 'have been spelled slightly different. See Parchman v. State, 2 Tex. App. 228 [28 Am. Rep. 485]. And if tíie words can be sounded alike, without disturbing the power of the letters that is found in the variant orthography, the variance will be immaterial. * * * Identity of sound may be regarded as a surer method of designating the names of persons than that of depending upon mere identity in the orthography. * * * It may be said that the decisions of the different courts are not uniform upon this subject, and ‘that we can find authorities both ways upon the subject, one line of authorities holding that if a vowel is substituted that gives to the instrument a different sound, then it is a variance, and others holding that the mere fact of the change of the vowel giving it a different sound would not be a variance. However, ‘o’ sometimes is given the sound of ‘a’ and ‘a’ sometimes the sound of ‘o.’ We, therefore, hold in this case that Benoni and Benani are practically idem sonans, and that the variance is not of sufficient materiality as could mislead the defense, and a conviction for rape upon a girl by the name of Benoni, where the indictment charged Benani, would be a complete protection.”

This decision in the Rowan Case was cited, quoted, and approved in Feeny v. State, 62 Tex. Cr. R. 590, 138 S. W. 135, which is also in point.

In Gentry v. State, 62 Tex. Cr. R. 500, 137 S. W. 097, this court held that the name “La.un Gentary” was idem sonans with “Lon Gentry,” and in that case held:

“The doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance, to be material, must be such as would mislead a party to his prejudice. State v. White, 34 S. C. 59, 12 S. E. 661, 27 Am. St. Rep. 783.
“Again, as laid down in 29 Oyc. 272, the rule is as follows: ‘The law does not regard the spelling of names so much as their sound! By the doctrine of idem sonans if two names, although spelled differently, sound alike, they are to be regarded as the same. Great latitude is allowed in the spelling and pronunciation of proper names; and, in all legal proceedings, whether civil or criminal, if two names, as commonly pronounced in the English language, are sounded alike, a vai-iance in their spelling is immaterial. Even slight differences in their pronunciation is unimportant; if the attentive ear finds difficulty in distinguishing two names when pronounced, they are idem sonans,’ citing in note 54, p. 272, a large number of names which are held by the courts to be idem sonans. In many of them the spelling is much different, and if the pronunciation was attempted to be given of each letter and syllable in the name in an accurate and particular way* there would be much greater difference than in the names we hold idem sonans in this case. No injury whatever occurred to the appellant by spelling his name in the complaint ‘Laun Gentary’ and in the information ‘Lon Gentry.’ ”

There can be no particle of doubt as to the identity of the party Modesta Espnosa, from whom appellant received said horse, knowing it to be stolen, whatever way his name was spelled or should have been spelled. He was one and the same person, and was the person who stole the animal in this instance and from whom appellant received it. Appellant could not possibly have been deceived or misled in any way by the way this person’s name was spelled or misspelled. We do not regard the case of Weitzel v. State, 28 Tex. App. 523, 13 S. W. 864, 19 Am. St. Rep. 855, applicable or in point. In that case the proof showed that the name of the person from whom the property was alleged to have been stolen was spelled differently in the indictment and pronounced differently from the way the name was really spelled and pronounced. All of the later decisions and authorities, as stated above, make a distinction between that case and this.

Appellant is mistaken when he contends that the judgment and sentence adjudge appellant guilty of concealing the said stolen property. Both expressly adjudge him guilty of receiving it. That was what he was indicted for; that was the sole question submitted to the jury, of which the verdict found him guilty.

There is no reversible error in this case, and the judgment will be affirmed.

On Motion for Rehearing.

At the time of the submission of this case appellant’s able attorneys filed a lengthy printed brief presenting only the questions discussed in the original opinion. In their brief they made no suggestion that the witness Efepnosa had not been sufficiently corroborated ; hence in our former consideration of the case and the opinion rendered our attention was not directed to that question. Neither does appellant in any ground of his motion for rehearing make that point or even suggest it. However, merely in oral argument submitting the rehearing motion he did suggest that the evidence was not sufficient to show that said accomplice witness was corroborated. We have therefore again carefully read and considered the testimony on this point, and in onr opinion the evidence was sufficient to show that the accomplice was corroborated as required by law. We see no necessity of reciting the testimony covering this point.

All the other questions were fully considered and properly determined against appellant as shown by the original opinion. No further discussions on any of those points is necessary.

The motion is overruled.
      iSwEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    HARGROVE v. STATE.
    (No. 4512.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.)
    C'biminal Law <&wkey;1092(6), 1099(5) — -Appeal —Time eor Piling Statement and Bill oe Exceptions.
    Where statement of facts and bill of exceptions were filed long after _ adjournment of court, they will not be considered on appeal, and judgment will be affirmed as it stands upon the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Henry Hargrove was convicted of rape, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape, and awarded five years’ confinement in the penitentiary.

The statement of facts is filed so lon¡ after the adjournment of court it cannot be considered. There is but one hill of exceptions in the record, and it is in the same condition. With these matters eliminated there is nothing set up in the motion for new trial that can he reviewed or revised.

The judgment, therefore, on the record as it stands, will be affirmed.