author: HARPER J.

text:
    LINK v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.
    Rehearing Denied March 11, 1914.)
    1. Indictment and Information (§ 166) — Defects in Proceedings of Grand Jury-Objections at Trial.
    Where the evidence, in a prosecution for ■procuring an abortion by use of an instrument the nature of which was unknown to the grand jury, was that if an abortion was produced it was done by the insertion of an instrument the name, character, and description of which was unknown at the trial, a request to instruct a verdict of not guilty for want of evidence that the grand jury did not know the name of the instrument was properly refused, though no member of the grand jury was called on to testify.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 527-530, 532, 533; Dec. Dig. § 166.]
    2. Abortion (§ 9) — Evidence—Pregnancy.
    In a prosecution for procuring an abortion, where defendant denied that the girl was pregnant, and contended that, if so, the foetus was dead at the time he operated on her, her testimony that her stepfather had had intercourse with her on two named dates was admissible to show pregnancy.
    [Ed. Note. — For other cases, see Abortion, Cent. Dig. §§ 17-20; Dec. Dig. § 9.]
    3. Criminal Law (§ 1091) — Bill of Exceptions — Requisites.
    A bill of exceptions should be clear and pointed, giving the testimony admitted, the objection made, and point out the error in the ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2S23, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    4. Criminal Law (§ 1091) — Bill of Exceptions — Sufficiency.
    A bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    5. Witnesses (§ 379) — Impeachment — Contradictory Statements.
    In a prosecution for procuring an abortion, where the mother of the girl testified on direct examination that she did not think her daughter was pregnant, that her menstrual period came on just before coming to defendant, and that she thought her mind was unbalanced, etc., and on cross-examination denied that she had approached certain doctors and asked them to perform an abortion on her daughter and told them that her daughter was pregnant, the testimony of such doctors that she did so approach them with such request, and the testimony of the girl’s sister as to statements made by the mother to her, showing that she knew the girl was pregnant and was desirous of having an abortion performed, were admissible as affecting the mother’s credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256'; Dec. Dig. § 379.]
    6. Witnesses (§ 379) — Impeachment — Conflicting Statements before Grand Jury.
    A witness may be impeached by proof of his statements before the grand jury in conflict with his testimony given on the trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222,1247-1256; Dec. Dig. § 379.]
    7. Witnesses (§ 379) — Credibility — Interest.
    In a prosecution for procuring an abortion, testimony of the mother of the girl that her husband, the girl’s stepfather, had been arrested as an accomplice after she had made certain statements to the prosecution, and subsequent to her testimony at the trial to a different state of facts, was admissible as tending to show her interest, feeling, and bias, within the rule that the motives operating upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters, but tend to affect his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    8. Witnesses (§ 319) — Impeachment — Wife of One of the Defendants.
    Where a defendant introduces the wife of another defendant, who testifies to facts material to the defense, she may be cross-examined as to the matters testified to by her on direct examination, and subjected to the usual test of cross-examination as to all matters pertaining to her examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1087-1093; Dee. Dig. § 319.]
    9. Witnesses (§ 380) — Impeachment — Contradictory Statements by Wife of Defendant.
    In such case the wife may be impeached by proof of contradictory statements as to material matters testified to by her on her direct examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    10. Witnesses (§ 268) — Cross-Examination —Scope.
    In a prosecution for procuring an abortion, where a witness for defendant testified that he knew the girl and had seen her often, and had observed nothing to lead him to believe that she was pregnant, there was no error in permitting the state to ask whether she was respected and stood well in the community, and whether there was anything by reason of which he would make a critical observation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    11. Criminal Law (§ 1166%) — Harmless Error — Remark oe Court.
    Where defendant was cross-examining a witness, the court’s remark, “Let him answer the question propounded before you butt in on him,” qualified by the court’s statement that counsel in his enthusiasm had several times interrupted the witness before he had finished his answer, was not prejudicial as tending to influence the jury on the issue of defendant’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    12. Witnesses (§ 374) — Impeachment—Relation to Accomplice.
    In a prosecution for procuring an abortion, evidence that the stepfather of the girl had been convicted of procuring an abortion on another girl, and that he and the husband of the girl’s sister were unfriendly in the absence of any showing that the sister was connected with' her father in the commission of the offense, or that she shared her husband’s ill will toward him, was inadmissible to affect the sister’s credibility, since that could be affected only by her own conduct and acts, and not by the acts of her husband.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    13. Criminal Law (§ 749) — Question for J ury — Punishment.
    In a prosecution for procuring an abortion, it was proper to submit to the jury the question of the punishment to be assessed upon conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1723; Dec. Dig. § 749.]
    14. Criminal Law (§ 721) — 'Tria:l—Remarks of Prosecutor — Defendant’s Failure to Testify.
    In a criminal case the remark of the assistant prosecutor, enumerating the witnesses for the prosecution and those for defendant, who had not himself testified, and his inquiry of the county attorney as to whether there was any one else who testified for the defendant, eliciting the response that there was no one else, was not such an indirect reference to defendant’s failure to testify as to direct the jury to such fact, within the rule that if the remarks relate to some circumstance or statement about which the defendant alone could be expected to testify, and the language is such as to call the jury’s attention to the fact that he alone could dispute the matter, and that he had not done so, there would be an indirect reference to his failure to testify, but that if that was not the legitimate and nec-’ essary construction of the language used, it would not be held such a reference.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    15. Criminal Law (§ 720) — Review — Remarks Out of Record.
    Such remark of the prosecutor, if true, was not a remark out of the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    16. Abortion (§ 13) — Instructions — Pregnancy.
    In a prosecution for procuring an abortion a charge to acquit if the medicine she took either caused, or was calculated to cause, the death of the foetus, or child, should not have been given; for, although she may have taken medicines, or used means calculated to cause the death of the child, yet if those means had not in fact caused its death prior to the time she was operated on, it would be an offense to produce an abortion under such circumstances.
    [Ed. Note. — For other cases, see Abortion. Cent. Dig. § 23; Dec. Dig. § 13.]
    17. Criminal Law (§ 829) — 1Tbiai/—Instruc-tions Already Given.
    In a prosecution for procuring an abortion, where the court instructed an acquittal if the witness had been pregnant and an operation was performed on her by defendant when the foetus was dead from any cause, and such abortion was performed to save her life, or if it was then necessary, the refusal of special instructions requested on that issue was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    18. Criminal Law (§ 823) — Instructions— Cure of Error.
    In such prosecution there was no error in failing to define the meaning of the word “assault,” where the court in submitting the issues stated in detail what the jury would be required to find beyond a reasonable doubt before they could convict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.].
    19. Criminal Law (§ 823) — Instructions — Construction Together.
    It was not necessary to instruct that the jury must affirmatively find certain matters before convicting;, where in a separate paragraph the jury were instructed that accused would not be guilty under such circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    20. Criminal Law (§ 804) — Trial—Submitting Instructions to Counsel.
    The law passed by the last Legislature, relating to the charge of the court, was intended to allow objections to the charge, and to give the court a chance to correct his errors, if any, and it was proper for the court to submit his charge to the attorneys, and, after they had filed exceptions thereto, to make such changes as he thought advisable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1948-1957; Dec. Dig. § 804.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    W. A. Link was convicted of procuring an abortion, and he appeals.
    Affirmed.
    Hood & Shadle, of Weatherford, Baskin, Dodge & Eastus and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER J.

Appellant is a physician located at Ft. Worth, and was prosecuted and convicted of procuring an abortion upon Daisy Moore, and his punishment assessed at four years’ confinement in the state penitentiary.

A motion was made to quash the indictment. It is in the language prescribed in White’s Ann. Code, § 1126, and which has been frequently approved by this court; therefore the court did not err in overruling the motion.

The indictment in this ease charges that the abortion was produced by the insertion of an “instrument into the private parts and womb of the lady,” the name, character, and description of the said instrument being to the grand jurors unknown. No motion was made to quash the indictment on this ground, but after the introduction of the ■evidence the defendant requested the court to instruct the jury that, as no evidence had been introduced showing that the grand jury did not know the name of the instrument, to instruct a verdict of not guilty. While it is true no grand juryman was called and questioned in regard to this matter, yet the record is replete with testimony that if an abortion was produced, it was done by the insertion of an instrument, the name, character, and description of which was unknown at the date of this trial, therefore the court did not err in refusing the instruction. McCarty v. State, 36 Tex. Cr. R. 135, 35 S. W. 994.

When Daisy Moore was on the witness stand she was permitted to testify that her stepfather, W. E. Eondren, 'had had intercourse with her on two named dates. As it was necessary to prove that she was pregnant, this testimony was admissible. Appellant all through the trial seriously contested the fact that she was pregnant, and further contended that, if pregnant, the foetus was dead at the time she was operated upon by appellant. Under such circumstances any and all testimony which would tend to show that the woman was pregnant and the child was alive when she was operated on by Dr. Link was admissible, and the court did not err in so holding.

This bill of exceptions is some 11 pages in length, containing questions and answers and objections made, some of which were sustained and some overruled, winding up with the statement, “to all of which rulings of the court the defendant then and there excepted and tenders this his bill of exceptions.” A bill of exceptions should state the setting, the testimony introduced, and the objections made, and not leave it for us to read some 10 or 11 pages of questions and answers, statements of state’s counsel, objections made, rulings of the court, and leave us to search with a fine-tooth comb to find what evidence was really admitted, and which objections were sustained by the court. They should be clear, pointed, give the testimony admitted, and point out the error in the ruling.

The next bill relates to the testimony of Mrs. W. E. Eondren on cross-examination. The questions, answers, objections made, and rulings of the court embrace 17 pages of the transcript. Some of the questions and answers thus included were not objected to; some of the .objections were sustained, and some overruled. Some of the testimony embraced in the bill was clearly admissible under all of the holdings of the- court; In the case of Ortiz v. State, 151 S. W.-1057, the rule governing these matters is clearly and succinctly stated in an-opinion by Judge Davidson wherein the authorities are cited, and it is held that a bill of exceptions is too general for consideration if it includes-a number of statements, some of which are clearly admissible. However, at different- times we have studied these two bills, and believe that we clearly now understand both the portion of the testimony which was admitted over objection and the objections urged.

Daisy Moore testified:

“My mother’s name now is Rachael Ebnd-ren. She is married to Edward Fondren, W. E. Fondren. My mother and W. E. Eondren have been married 12 or 13 years.
“I know what you mean by monthly sickness. When my monthly sickness first appeared I was 14 or 15 years of- age, about 14 years old, as well as I remember it; My ■mother, Mrs. Rachael Eondren, and I made a visit to Ft. Worth about the 1st of May of this year; we came down to Et. Worth. I had not been having my monthly sickness regularly up to the time I . came down to Et. Worth. I had had my monthly sickness last on the 17th of October, last year, last winter, the 17th of October, and I never had my monthly sickness after that period. I missed first about November 17th.
“You ask me if I had had intercourse with any man or boy prior to coming to Ft. Worth, and if any man had had intercourse with me prior to my coming here to Ft. Worth, who it was, and I answer, W. E. Fondren. I refer to W. E. Eondren, my stepfather; he is the one. My stepfather is the one — what question did you ask me? W. E. Eondren is about 47 or 48 years old. I was living in his home when he commenced to have' intercourse with me.
“I was sick last about the 17th of October, and between that time and the time I came to Ft. Worth (about May 1st) of this year, W. E. Eondren had intercourse with me. He had intercourse with me about four or five' days after the 17th of October, as well as I remember. It was in the cotton patch that he first had intercourse with me after my sickness on the 17th of October — alongside of 'the cotton patch; I was going to pick cotton. I did not make any engagement with him to meet him in the field, I never did.- At this time in the field there was no- one else there ■besides the defendant and me; by the defendant I mean. W. E. Eondren. He had intercourse with me after this time in the cotton patch you have just questioned me about; that was not long after this time in the cotton patch, just a few days. After that I missed my sickness on November 17th, and it did not occur any more up to- the time I came to Ft. Worth. Before I carné to' Et. Worth I experienced a movement in my abdomen that I had never experienced before; there was a movement in my abdomen that I had never experienced before; • that appeared about a month and a half before I came to Et. Worth. That movement increased as time went on, up to the time I came to Ft. Worth. With reference to my size around my abdomen and my hips, X state that I got larger; X grew larger — I said larger. On the 17th of October and along there I was wearing a No. 20 corset, and when I came down here to Ft. Worth I was wearing a 22. Prior to October 17th I wore a corset that laced behind; some one did get me a corset during this period. I had been wearing corsets that laced behind and snapped in front, sorter, and the hind of a corset I had gotten for me during this time was one that laced in front, and it would give behind here and on the side of it, you could lace it on the side and front, here. It had the snaps in front and also the lacing down the front. I could lace down a whole lot with that new kind of a corset.
“W. E. Fondren brought me from my home to Weatherford when I started down here to Ft. Worth; he is my stepfather. My mother and I came on to Ft. Worth by ourselves; my mother had her baby with her. It was the 3:45 train we got on at Weatherford; 3:45 in the evening. I had some relatives living here in Ft. Worth at that time; they were my sister and brother-in-law. My sister’s name is Pansy Kirby, and she is my full-blood sister. She is married to George Kirby. When I got here to Ft. Worth that evening I went right on out there to my sister’s. The next morning I did go somewhere, and my mother and sister went with me; we went over here in town to hunt a doctor.
“This morning that we came over to Ft. Worth I met the defendant, Dr. Link; met him in his office there — here in Ft. W»rth, in Tarrant county, Tex.
“You state that I cannot give the exact words, but ask me to relate as near as I can to the jury, giving the substance of any conversation my mother or I had with the defendant doctor at that time, and I answer: Mama came into the office there and said, ‘I want you to operate on my girl; she got into some trouble with a boy, and I want you to operate on her, Doctor’ — and he said, ‘All right.’ He told me to get up there on his operating table in a chair and let him examine me. I got on the operating table. It was a table you lay your head down and put your feet way up high. After I was on that table the position of my feet and limbs was way up high, fastened in something. I noticed that there was something like stirrups on the end of this table; my feet were placed in those stirrups to hold them, something to hold them. With reference to the balance of my body my knees were way up high. He examined me with my tight clothes oh while I was lying in that position. The first time I laid on this table I had my tight clothes on. After he had examined me he said he would operate on me then. After I was off this operating table he told me to go behind a screen there and pull off my tight clothes. Up to that time I had heard a conversation between my mother and the defendant ; she wrote a check; I saw her writing something over there. You ask me if I understood from the conversation between my mother and the defendant the amount of that check, and I tell you they said it was $150. From the conversation between the defendant and my mother I know that cheek was torn up afterwards; they made another one.
“I took off my tight clothes, and after I had them off, I was then examined again up on the table; I was placed in the same position, I was put up there. After I was examined that time he said, ‘You are too far advanced.’ He said he thought I was six or seven months advanced. He then said he would operate on me if he could get any one to keep me. He said, ‘You are too far advanced,’ and mama said, ‘Can’t you take everything away now,’ and he said, ‘No, you had just better cut her throat.’ After that I heard them talking some more with reference to the matter óf a check; he said he would have to have more, and they finally agreed on the sum of $200. He said he had a nurse that taken advanced eases, and one that did not take advanced cases, and he sent mama and my sister down to her house to see if she could get her to take me. While they were gone I was out in the hall looking out the window at flowers, and I had taken care of mama’s baby while they were gone. When they came back they said they could not get her. In response to your question if my mother said anything to the defendant as to why they could not get this nurse that took advanced cases, and I state to you that they said her daughter was sick — I never heard all they said, mama told me — after my mother reported that she could not get this nurse she went to see, the defendant said he would get another nurse, he would go phone to another nurse. I never heard him phoning, but another woman came up there that evening. This conversation I have related about these matters occurred in the morning, when I was operated on in the evening.
“This woman came after I was operated on, but mama was there. On being requested to tell the jury as best I could what was done at the time this operation was performed, 1 state: It was a silver looking tube, and taken out, and some kind of a buzzing, is all I heard, and put the silver tube, he used a silver tube — I was placed up on the operating table — in the same position I said I was placed that morning. I was not given anything. Before the operation was performed I saw the defendant with something in his hands. You ask me if I could see whether or not he inserted that thing be had in his hands into my private parts, and I answer that I seen something; I seen it, yes, sir. I saw it when it was in his hands, but I could not see it when it was inserted; I could not see what he used, no, sir. When the defendant inserted this, whatever it was, into my private parts, it just hurt me awful bad, it like to killed me; I just cried, and he said he would be done in a few minutes [weeping]. The pain and suffering was greater after this had penetrated my private parts, after it had penetrated some distance.
“With reference to this movement in my abdomen that I had been experiencing for a month and a half, there was a movement at the time he inserted this instrument when it was paining me the greatest; it was more than it had been before, it was greater. After this instrument was removed he placed something in my private parts and left it there, it looked like a cloth that he placed in there — white cloth. I was willing and consented to this operation, I wanted to do anything to get all right. After this was over there nothing passed from me at that time. My mother was still there when the first operation was finished. Mrs. Chancellor, this lady who was phoned for, came while I was putting on my clothes, a little while after I was operated on. I told my mother good-bye there at the office; I did not see her any more there that week. When I left the defendant’s office I was with this woman, Mrs. Chancellor, and I went to her house here in Ft. Worth; it is on Cherry street. We walked to her home; the reason we walked is because she said that would make it pass quicker. I went up there to the doctor’s office the next morning, and I was operated on again by the defendant; I was placed in a position just like I was the first time. The defendant operated on me that time; he inserted the instrument into my private parts again; he used the instrument just like he did. With reference to the pain or suffering, I state that operation hurt. It hurt worse than it did before; I suffered. That time it hurt worse when the instrument was first inserted into my private parts, it hurt — it hurt worse after it had penetrated some distance. I experienced this movement in my abdomen on this second operation also; this movement was then greater than it had been béfore coming to Ft. Worth. I was not a position to see the instruments as they were placed in my private parts; I could not see them. I do not know of my own knowledge what those instruments were. After that second time I taken some medicine; I taken some salts and taken some tablets at the house. I taken the salts before this second operation; I took the tablets after the second operation. After the second operation I took some tablets; he said it would make me quit suffering so; those tablets were taken down at the house. Mrs. Chancellor and the doctor were present at this second operation. You ask me if there was anything left in my private parts after he was through, and I state that he taken some long cloth out when he went up to his office. As well as I remember after he was through with this second operation he placed some cloth back into my private parts, but 1 was suffering so I do not know. If I ever experienced this movement in my abdomen after this second operation I do not know it; I might have a little bit, but I do not know it if I ever did. If it ever moved after that I do not recall it. I walked home that time, the doctor and Mrs. Chancellor said it would make it pass quicker; they said for me to walk home; it would make it pass quicker. As I went up there the second time, I rode part of the way and walked part of the way, and as I went on back home I walked every bit of the way. I told her, ‘Let’s get a street car, and she said, ‘No.’ This second operation was on Wednesday morning. Dr. Link came down there that night; Mrs. Chancellor phoned for him, I got to suffering so. I just had pains and wanted to get up over the night glass all the time. I had never experienced any pains like those before; those pains were down low, here — down low in my abdomen — and those pains caused me to feel like I wanted to get up all the time. Those commenced — those pains commenced — two or three hours, several hours, before it passed. The deféndant was there an hour, as well as I remember, before whatever passed did pass. I was on the bed, and she said to push against her to make it pass quicker, bear against her breast; she said to push against her, it would make it pass quicker; she sat up there on the bed with me, and finally it passed. Immediately after it passed the doctor and Mrs. Chancellor were talking about getting the scissors and cutting the cord— Mrs. Chancellor and the doctor were talking about getting the scissors and cutting the cord. Mrs. Chancellor and the doctor were working down there, they were doing something; after they spoke of the scissors and cutting the cord they were both down there busy with something. I do not know what they did with it. After this first passed I passed something else; it looked like "red hog liver, but I do not know what it was; I passed something that looked like red hog liver. You asked me if they called it, or said what it was, and I answer, the afterbirth. It was late in the night when Dr. Link left that night, but I do not know what time it was; I was suffering so I do not know.”
Mrs. W. E. Fondren testified: “Daisy Moore is my daughter, my own daughter by my first husband. She has lived with me all the time until recently. I remember the occurrence of her coming to Ft. Worth. I brought her. She came to Ft. Worth some time in March before that, she came to the stock show. I did not come with her then; she came alone. She returned on Saturday night. I do not know just exactly how far we live from Lambert switch, which is in Parker county, but-1 expect it is 8 miles; it is 11 miles from our house to Weatherford. In going from Ft. Worth on the railroad we people usually get off at Lemley. and have some one meet us there and take us out.- On that occasion some one went over there to get Daisy, her brother Olay Moore went after her, and the train failed to let her off and carried her too far, and he came back and left her there. He thought the train was not going to stop, but it went on and stopped, and when she got off, and they told her they were a mile and a half from the switch, and she asked them to back with her. He returned without her, and she came in at Í) o’clock in the night. She came afoot and carried her grip. The grip she carried was just a common size grip, and it was full of things; my daughter had sent me a set of glasses, and I do not know what all and what clothing she had had to wear through the week. It was heavy. When she got there she just stated she was worn out, almost exhausted when she got home.
“Before that time I had noticed something unusually in her condition mentally as to whether or not she seemed to be troubled; she seemed despondent, for I guess six months, more so than common, and seemed troubled. I did the washing on the place. I helped her to do the washing. I washed her clothes. She had had her sickness on her; if she had ever missed any particular time I did not know it, some times she would not be any to amount to anything, but her sickness was on her on Monday and still on her, off and on, all the week before she came down here, and it was on her on Monday before she came down here. After she made that trip from Lemley switch to home, she had some spells; we were getting breakfast, and she went to grind the coffee and turned around to put the coffee in the coffee pot and fell, and. when she fell she struck her head — the back of her head — and it scared me. I thought when any one faints they always tipped forward, or I thought they did. She fell just perfectly dead, every one on the place could state the same, and we picked her up and carried her in the house, and that spell lasted 30 minutes, and when she came to, she complained of the back of her neck hurting her. She had some more spells after that, but I could not tell you how many, but she had light spells; she never did' have another hard spell, hard as that one, until I brought her down here, and she was threatened the day I brought her to the doctor with another spell, and seemed to be worried and troubled, and seemed like there was something wrong with her mind more than anything else.
“Before I came down here, I had a conversation in the garden with my daughter with reference to her condition. We came down here on Monday, and the best I can remember it was on the Saturday before the Monday that I came. She made a statement to me about her condition, she told me she was in a family way, and she made a statement to me about what had been done, or what she had done. She said she was in a family way, and I argued with her- and told her she was not, and her sickness was on her, but she contended she was, and she said she was, and she had taken medicine, turpentine, I don’t remember how much she stated, but a terrible sight, that she had taken herself, and she said she had taken cotton root medicine, I don’t know how much, but she said she taken it. I asked where she got it, and she refused to tell me. She said she had used a pencil and hat pin and the foetus was dead and would have to be removed or she would kill herself; that is what she stated; she said there must be something done at once or she would kill herself. I told her — I hated to take her to Weatherford to have anything done, if I did, it would get out that she was ‘fitified’ and I thought that was working on her, on her mind, and so my daughter had wrote to me that she and her child were very sick — after she told me that I brought her to Ft. Worth. That was one Saturday before I came to Ft.. Worth the next Monday week. After -I brought her to Ft. Worth I took her to Dr. Link. When she told me this in the garden, I asked her who she had been with. She said there was something passing from her, and it was very offensive, what was passing, and that was the reason she knew it was dead. After I brought her here I took her to Dr. Link. I did not know Dr. Link before I came to Ft. Worth, and had never heard of him; I just inquired from other doctors. Pansy and Daisy went up there with me. Pansy was her sister. I do not know what time.of day we went up there; we started early in the morning, and it must have been 11 o’clock; we went several places. I told Dr. Link that my daughter was in a critical shape in some way, and she said she was in a family way, though I did not think she was, and Dr. Link said he would examine her and see, and he did examine her. He examined her like a doctor would a woman that was going to be confined, and he told her that he did not think she was in a family way, but if she was, the foetus was dead, and he told her to unloosen her clothes. She did so, and he said there was something passing from her that was very offensive, and if there was. anything there it was dead and must be removed, and then there was something — I sat at her head on the sofa, and in front of us was some kind of a tin arrangement, looked more like a bucket than anything else, with a tube in it, I suppose with water, and he used that syringe to wash her out; that is what he done, and he told me he' would have to treat her; that you must get some place close so he could treat her, and it would probably take a year to treat her. He did not pack any cloth of any kind, or anything that looked like cloth,, in her private parts or womb; he did not do that. He did not use any instrument on her, except the instrument I spoke of just now; I know he never, for I was- right there,, and there was nothing of that Mud used. I suppose there was water there, I heard water making a fuss, hut I did not see it, but I suppose it was in the syringe or whatever that was up there, that tin vessel. The tube was fastened to that vessel. My daughter is 19 years old. She is a young girl. When I got there with her she seemed awfully nervous, and I sent her out to get some candy and a lunch for the baby. The reason I sent her out is because I thought it would get her mind off her condition; I did not know, she seemed nervous to me, and complained of the back of her head, and the doctor told her he thought it was her spine that was affected, was one thing that was the matter, and that if she was not treated right away it would affect her mind. He made a statement after he had her loosen up her clothes. There was a flow there, and he said if there was not something done, blood poison was liable to set up, and he did not see why it had not set up before now. We first suggested that she would stay at her sister’s, but her sister lived six blocks from the car line, and she would have had to walk six blocks, and the doctor said that was too far for her to walk, and we would have to get some place close for her and I went to make arrangements. We went to a lady close by — I do not know who she was — that kept boarders, and she said she would keep her in a minute, but was going away; it said, ‘Private Boarding Place.’ I returned and reported the matter, and told him the close place down the street; we went to two places, and one place the lady was gone and the other place a lady was at home and her sister was very sick and was going to have an operation for appendicitis, and she was going away. When I returned ' I reported to Dr. Link that I had failed to get a place for her to stay. Dr. Link then told us to make ourselves at home, and if he could get some place close, he would get her a boarding place close to him, and he would treat her and she could stay out there three or four days or a week and return home and come back and forth. They made arrangements to get some one; there was a lady came, but I cannot tell you her name. I got the nurse; I did not make the arrangements; he just asked her if she would keep her, and he told her he would go out the next morning to see her. There was nothing said about nurses for advanced cases, or that he had nurses who were advanced nurses and nurses who were not; there was nothing at all like that said, not a word. This lady said she had a neat home and was keeping boarders. That is what she stated.
“The doctor said before we got any nurse that he would take her for $175 and treat her until she was well if it taken a year or taken longer, and I said: ‘Doctor, that is a good deal of money,’ and he said if she was treated at a hospital it would cost me $500. When the nurse came he said he would pay all expenses, medicine and every thing, and take the case for $200, and then I agreed to that. Dr. Link wrote the cheek, and I signed it. After that I went away; I left right when she did. She weni away with this lady nurse, Chancellor, or some such name. She walked away, and I went over to my daughter’s, Mrs. Kirby. I never left there, only to come back to the train; I aimed to go to her house and see what kind of a place she was staying, but I was sick the next morning and could not go, so I taken the next train the next morning and went home.
“I never asked Dr. Link to perform an abortion on my child, and he never agreed to perform an abortion on my child, and he never performed an abortion upon this girl.”

The defendant introduced several witnesses' who testified that they knew Daisy Moore, and saw her frequently just before she came to Ft. Worth, and they did not think she was pregnant; at least there was' nothing in her appearance to so indicate.

It was admitted by defendant that Mrs. Fondren on this occasion gave him a check for $200 to treat and care for her daughter, and that same was paid. This, we think, gives a sufficient portion of the testimony to make our rulings clear and succinct.

After Mrs. Fondren- had testified on direct examination, as above recited, first, that she did not think her daughter was pregnant — that her menstrual period came on just before coming to Ft. Worth, and that she thought her mind was unbalanced, etc. —on cross-examination of this witness she was asked if she did not approach Drs. Ray and Trigg and seek their services in the performance of an abortion on her daughter, and state to them that her daughter was pregnant. She denied so doing, and the doctors were permitted to testify that she did approach them, state that her daughter was pregnant, and desired them to perform an operation on her. This was on the same day that she afterwards carried her daughter to Dr. Link’s office, with whom she contracted to perform the operation, and paid him to do so. This cross-examination of Mrs. Fondren was permissible, and the testimony of the doctors properly admitted after she had testified as hereinbefore recited at the instance of appellant. The same may be said of the testimony of Mrs. Pansy Kirby, who also testified as to statements made to her, showing that she knew Daisy Moore was pregnant, and was desirous of having an operation performed on her. Mrs. Fondren had testified for appellant that her daughter was not pregnant; that, if pregnant, her daughter had told her the foetus was dead, and she had so informed Dr. Link. It was then permissible to show that she knew the girl was pregnant; that the foetus was not dead, and that instead of telling Dr. Link that it was dead, she had informed him to the contrary, and paid Mm $200 to perform an abortion and have her daughter cured. He relied on this testimony of Mrs. Eondren, and introduced her as a witness to show that he was guilty of no offense; consequently it was permissible for the state to show prior statements of Mrs. Eondren to show that her testimony on this tidal was not true. The court in his charge properly limited the testimony so adduced as affecting the testimony of Mrs. Eondren, and instructed the jury same was admissible for no other purpose. As illustrative of this the court instructed the jury: “You are further instructed that the testimony of Dr. Ray and the) testimony of Dr. Trigg relative to any statement or statements made by the said Mrs. W. E. Eondren to either of said witnesses about Daisy Moore while in said witnesses’ offices, and the testimony of S. S. Gilbert, sheriff of Parker county, relative to any statement made by Mrs. Eondren in the presence of said witness, and that portion of the written statement made by Mrs. Fondren and introduced by the state, was introduced for the sole purpose of affecting, if you believe it does affect or tend to affect, the credibility of the witness Mrs. W. E. Eondren in this case, and you cannot consider such testimony for any other purpose.” The other testimony introduced to impeach Mrs. Eondren was also limited in the same way. Huffman v. State, 28 Tex. App. 178, 12 S. W. 588; Levy v. State, 28 Tex. App. 209, 12 S. W. 596, 19 Am. St. Rep. 826; Fuller v. State, 30 Tex. App. 563, 17 S. W. 1108; Campos v. State, 50 Tex. Cr. R. 292, 97 S. W. 100; Newman v. State, 70 S. W. 953.

And a witness may be impeached by proof of her statements before the grand jury in conflict with her testimony given on the trial. Clanton v. State, 13 Tex. App. 153; Scott v. State, 23 Tex. App. 565, 5 S. W. 142; Gibson v. State, 45 Tex. Cr. R. 313, 77 S. W. 812; Gallegos v. State, 48 Tex. Cr. R. 61, 85 S. W. 1150.

It was also shown by this witness that her husband had been arrested as an accomplice to this offense after she had made the statements introduced by the state, and subsequent to the time she testified on this trial to a different’ state of facts. This was admissible as tending to show her interest, feeling, and bias. Mr. Branch in his work on Criminal Law correctly states that the motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters, the mental state or status which, fairly construed, might tend to affect his credibility, citing Mason v. State, 7 Tex. App. 623; Sager v. State, 11 Tex. App. 111; Bonnard v. State, 25 Tex. App. 195, 7 S. W. 862, 8 Am. St. Rep. 431; Green v. State, 54 Tex. Cr. R. 7, 111 S. W. 933; Gelber v. State, 56 Tex. Cr. R. 462, 120 S. W. 863.

And that the witness is the wife of one of the parties charged with the offense does not change the rules, where the party on trial introduces the wife of one of the defendants as a witness, and she testifies to facts material to the defense. A. wife may be cross-examined as to matters testified to by her on direct examination, and may apply the usual tests of cross-examination as to all matters germane and pertinent to her direct examination. Dobbs v. State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Creamer v. State, 34 Tex. 173.

And wife may be impeached by proof of contradictory statements as to material matters testified to by her on direct examination. Red v. State, 39 Tex. Cr. R. 422, 46 S. W. 408; Hampton v. State, 45 Tex. 154; Young v. State, 54 Tex. Cr. R. 420, 113 S. W. 276; Crews v. State, 34 Tex. Cr. R. 545, 31 S. W. 373.

These decisions dispose of all the objections to the cross-examination of Mrs. Eondren, and the testimony introduced to impeach the testimony she gave in behalf of appellant on this trial.

Neither was there error in permitting the state to ask the witness Mitchell, after he had testified in behalf of defendant that he knew Miss Moore, had seen her often, and he had observed nothing to lead him to believe she was pregnant; that Miss Moore was respected, stood well in the community, and there was nothing 'to attract his attention by reason of which he would make a critical observation.

In the eighth bill of exceptions it is shown that while appellant was cross-examining Dr. Kibbie, the court remarked: “Let him answer the question propounded before you butt in on him.” The court in approving the bill states: “The counsel who was interrogating the witness, in his enthusiasm, permitted himself, several times, to interrupt the witness upon cross-examination before the witness had finished his answers, and did so several times before the court made the request disclosed in the bill of exceptions.” As thus qualified, the .bill presents no error. The remark could not have been hurtful to appellant as tending to influence the jury in passing on his guilt or innocence.

The defendant desired to prove by Mrs. Pansy Kirby that her father had been convicted of producing an abortion on Millie Smith; the case being reported in 37 Tex. Cr. R. 552, 40 S. W. 287. Mrs. Kirby could not be held responsible for the acts of her father, and that he was a criminal would not affect her credibility. Neither was there error in excluding testimony that the husband of Mrs. Kirby and W. E. Fondren were not friendly. The credit of a' witness can be affected only by her conduct and acts— her deeds. The deeds of her relatives cannot "be chargeable to her unless in some manner it is proposed to connect her with the matters inquired about. To use a homely and common expression “Every tub stands upon its own bottom.” In this instance it is not proposed to show that she was in any way connected with her father in the commission of the offense, nor that she shares the ill will of her husband towards her stepfather, Mr. Fondren. Her husband was not a witness in the case.

It was proper for the court to submit to the jury the question of the punishment to be assessed in case the jury found appellant guilty. Ex parte Randal Marshall, 161 S. W. 1125, recently decided, but not yet officially reported.

It appears that when Mr. Wilson, who was assisting in the prosecution, was addressing the jury, he made use of the following remarks:

“The evidence in this ease shows that the defendant Dr. Link is a professional in this business; the witness Daisy Moore and Pansy Kirby both testified that Dr. Link said he had a nurse that would treat advanced eases. They put on Mrs. Fondren; we put on Daisy Moore and Pansy Kirby; they were all of the witnesses who testified in this ease for the defendant.” Then, turning to Mr. John W. Baskin, Oounty Attorney, the following colloquy occurred in the presence and hearing of the jury:
“Mr. Baskin, was there any one else who testified for the defendant?
“Mr. Baskin: No; no one else.”

Appellant objected to these proceedings “as being out of the record, and an undue reference to the failure of the defendant to testify, and he presented the following special charge, which was by the court given at his request: “I further charge you as part of the law of this case that the remarks of Jim Wilson in closing his argument for the state that certain witnesses were all of the witnesses that testified for the defendant, and asking Mr. Baskin who else testified for the defendant, and Mr. Baskin replying that no one else testified, and BIr. Wilson’s statement that and question, Who else testified for the defendant?’ were improper, out of the record, and should not have been made by him, and you will please not consider the same in deliberating upon or arriving at a verdict in this case.” It certainly was not out of the record to state that they were all the witnesses who testified in regard to a certain matter, if this was true. Now, would this be an indirect reference to the failure of defendant to testify and comment thereon in such way as to direct the minds of the jury to the fact he had not testified? We do not think the language used is subject to that construction. In the case of Bagley v. State, 53 Tex. Cr. R. 324, 109 S. W. 1095, an objection being made to the remarks of the prosecuting officer on the ground that, by reference to the failure of defendant to produce certain testimony, it was an indirect reference to defendant’s failure to testify, when the prosecuting officer remarked, “I have no reference whatever to ■ the fact that this defendant was not placed on the stand— I referred to the fact that he should have placed Kirk on the stand” — it was held to present no error. In the case of Torey v. State, 41 Tex. Cr. R. 543, 56 S. W. 60, the following language was objected to as an indirect reference to the failure of defendant to testify: “Gentlemen, * * * counsel for defendant says, ‘The grand jury hears only one side of the case,’ * * * and I want to call your attention to the fact that you have heard only one side of the case.” Held that it was not an allusion to the failure of the defendant to testify. In the case of Wilkerson v. State, 57 S. W. 961, where the prosecuting officer used the following remark: “Tump Eldred says that this is the same pistol » * * that he killed: 'Slate with, and this is not denied on the part of the defense” — such language was held not to be a reference to the failure of the defendant to testify. On the other hand, in the case of Barnard v. State, 48 Tex. Cr. R. 111, 86 S. W. 760, 122 Am. St. Rep. 736, it was held that the following remarks were an indirect reference to defendant’s failure to testify: “When the baby was only three days old, defendant goes to the house where prosecutrix was in bed; he saw the baby, and said * * * it was his baby, and he wanted it, * * * and now, gentlemen, who has denied it?” Judge Brooks did not agree to that opinion, and it is claimed there is want of harmony in our opinions on the question of what is an indirect reference to a defendant’s failure to testify. The writer, however, does not think so, after studying the various cases and the facts of those cases. The rule seems to be that if the remarks relate to some circumstance or statement about which the defendant alone could be expected to testify, and the language is such as to call the attention of the jury to the fact that he alone could dispute the matter, and that he had not done so, it would be held to be an indirect reference to his failure to testify; and we so held in the case of Vickers v. State, 154 S. W. 578. On the other hand, if this is not the legitimate and necessary construction of the language used, then it will not be so held, and will present no error. Tested by such rule, the bill in this case presents no error, for it cannot be held to be the only legitimate construction of the language used was that defendant, and defendant alone, was the only other person who could testify in the premises stated, nor that it would suggest, to the jury that he could but had not so testified, for the nurse could have and did testify in the case.

The other remarks complained of, as the court instructed the jury not to consider them, are not such remarks as were of that nature that would influence the jury in the face of such instructions.

The special charge requested, ashing the court to instruct the jury that if the medicines she took either caused, or was “calculated to cause," the death of the foetus, or child, they would acquit should not have been given; for this is not the law. Although she may have taken medicines, or used means calculated to cause the death of the child, yet if those means had not in fact caused its death prior to the time she was operated on, it would be an offense to produce an abortion under such circumstances. The court did instruct the jury: “Xou are further instructed that if you find and believe from the evidence in this ease, beyond a reasonable doubt, that the witness Daisy Moore had been pregnant, and that an operation was performed upon her in the city of Ft. Worth on or about the date charged in the indictment, but you further find and believe from the evidence that at the time of the said operation, if any, the foetus or embryo, if any, was dead from any cause whatever, before the said Daisy Moore arrived at the office of the defendant, or before the defendant operated upon her, or at the time the defendant operated upon her, if you find that he did, or if you have a reasonable doubt as to whether such was the case, it will be your duty to acquit the defendant. And you are further instructed that if you find and believe from the evidence an abortion, if any there were, was performed upon the said Daisy Moore by the defendant, W. A. Link, for the purpose of saving the life of the mother, Daisy Moore, or if you find that such abortion at said time, if any there were, was necessary, or if you have a reasonable doubt as to whether either one or both of said conditions above stated existed at said time, then it will be your duty to acquit the defendant.” Having thus instructed the jury, there was no error in refusing the special instructions requested on this issue.

There was no error in the court failing to define the meaning of the word “assault,” as in the charge submitting the issues to the jury he stated what they would be required to find beyond a reasonable doubt in detail before they would be authorized to convict, and, if they did not so find, to acquit appellant.

It was not necessary, in those parts of the charge submitting the facts, to instruct the jury they must affirmatively find before they would be authorized to convict that if the foetus was dead, or he did so to save the life of Miss Moore, they would acquit, as he in a separate and distinct paragraph, as hereinbefore shown, fully instructed the jury he would be guilty of no offense under such circumstances.

This case was tried after the law relating to the charge of the court passed by the last Legislature had gone into effect; consequently it was proper for the court to submit the charge to the attorneys, and, after the attorneys had filed their exceptions thereto, to make such changes as he thought advisable and proper to meet the objections made to the charge, and the only matter we can consider is the objections to the charge as finally read to the jury. The law was intended to have attorneys make objections to the charge, and give the court a chance to correct his errors, if errors there be, and it is only when the court refuses to correct the errors, when his attention is thus called to the matter, that this court is now authorized to review the charge as given. In so far as he corrects the matter complained of, he should be commended and not censured.

There were two counts in the indictment in this case, and there was no error in submitting both counts under the evidence adduced on the trial. This record is very lengthy, embracing more than 400 pages of typewritten matter, but we have studied it diligently, first, to determine whether or not any evidence had been improperly admitted or excluded, and, secondly, to determine whether or not the issues as made by the testimony were fully and properly submitted to the jury by the court in his charge, and we have come to the conclusion there was no error in admitting testimony; and, while the charge may be subject to some verbal criticisms, yet, taken as a whole, it fairly submits the issues to the jury, and no complaint is made that would call for a reversal of the case, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    BEST v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied March 25, 1914.)
    1. Cbiminal Law (§ 1093) — Bill of Exceptions— Sufficiency.
    A bill of exceptions stated that the “state introduced in evidence part of a statement of facts of a former trial as agreed on and signed by the attorneys for the state and for the defendant and certified as correct by the official stenographer, now absent and living in another state, and approved by the court; that said statement was not signed by defendant; and that it purported to be his testimony on the trial, as follows [stating the testimony]; that this testimony was offered and admitted after the state had asked defendant if he did not testify at such former trial as above set out, and he stated that he had not so testified; that defendant objected to said statement and testimony for the following reasons: ‘It is hearsay, it is contained in the statement of facts agreed by the attorneys,’ etc., which objections were overruled by the court, to which ruling the defendant excepted, and tenders his bill of exceptions to be signed and approved and filed as part of the record.” Held, that the bill was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    2. Criminal Law (§ 1093) — Bills of Exceptions — Sufficiency.
    The allegations of a bill of exceptions should be so explicit that the matters may be comprehended without recourse to inferences, and so as to enable the appellate court to fully understand all the facts on which the rulings depend, and must set out the proceedings below sufficiently to enable the court to know that an error has been committed, and be so full that in and of itself it will disclose all that is necessary to manifest the alleged error, and must state enough of the evidence or facts proven to render intelligible the rulings involved, and it cannot be aided either by a statement in reply to a motion for a new trial or by the statement of facts, nor will the appellate court supply omissions or aid the bill by inferences or presumptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    3. Criminal Law (§ 1111) — Appea:i>-Record —Conflict—Bill of Exceptions.
    The bill of exceptions controls the statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.]
    4. Criminal Law (§ 1092) — Appeal—Bill of Exceptions — Certificate.
    Objections or mere statements of the ground of objection in the bill of exceptions is not a certificate of the judge that what is stated is true.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, 2919; Dec. Dig. § 1Ó92.]
    5. Criminal Law (§ 1114) — Appeal—Presentation of Objections — Bill of Exceptions.
    Objections not affirmatively mentioned in the bill of exceptions are deemed to have been waived.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.]
    6. Criminal Law (§ 1091) — Bill of Exceptions — Sufficiency.
    A bill of exceptions to the admission of evidence which simply states the grounds of objections, but fails to state, as matters of fact, the matters upon which the objections were predicated, is insufficient.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Criminal Law (§ 539) — Admissibility of Evidence — Former Testimony of Accused.
    A statement of facts in a former trial of the case containing the testimony of the accused was not hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. § 539.]
    8. Criminal Law (§ 539) — Admissibility of Evidence — Former Testimony of Accused.
    That the testimony of accused in a former trial of the case was contained in a statement of facts in that case would not make it inadmissible.
    [Ed. Note. — For other cases, seé Criminal Law, Cent. Dig. § 1230; Dec. Dig. § 539.]
    9. Criminal Law (§ 539) — Admissibility of Evidence — Former Testimony of Accused.
    A statement of facts in a former trial of the case containing the former testimony of accused was not inadmissible as against the objection that it was not the testimony of a witness who had heard the defendant so testify, or the objection that it was condensed in the statement of facts, or the objection that it was not in the form of question and answer as the stenographer made it, or that it was not signed by the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1230; Dee. Dig. § 539.]
    10.Criminal Law (§ 1093) — Bill of Exceptions — Sufficiency.
    A bill of exceptions to the admission of a statement of facts in a former trial of accused containing his former testimony, which bill did not show that it was not agreed by the parties that the said admitted testimony had not been agreed to. as the testimony of accused on the former trial, nor show that no witnesses were introduced who testified that the accused had given such testimony on the previous trial, and did not by any means exclude the idea that the testimony was not proven in some of the methods prescribed by law to render it admissible, was insufficient to show error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    Appeal from District Court, Baylor County; Jo A. P. Dickson, Judge.
    J. R. Best was convicted of manslaughter, and appeals.
    Affirmed.
    T. T. Bouldin, of Matador, and Hart & Woodward, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, and his punishment fixed at three years in the penitentiary. This is the second appeal in this case. The first is reported in 61 Tex. Cr. R. 551, 135 S. W. 581.

There is but one question raised and presented on this appeal. It is shown by appellant’s only bill of exception. Omitting the number, style of the cause, and the term and county of the court below, we will quote the bill of exception in full: “Be it remembered that upon the trial of the above entitled and numbered cause the state introduced in evidence a part of the statement of facts of a former trial of this case in this court at the August term, 1910, filed in this court October term, 1910, being the statement of facts in said cause as agreed upon and signed by the attorneys for the state and the attorneys for the defendant, and certified to as being correct by the official stenographer of the court, who is now absent from this state, and living in another state, and approved by the court. Said statement, not being signed by the defendant, and which purported to be a part of the testimony of the defendant on the trial, as it appeared in said statement of facts and was as follows: T have testified at every trial that Charlie Hand got over the fence; I testified that here a year ago, and at Matador on a former trial of this case. I testified that Charlie Hand was coming over it or got over it; and I now testify that he got clear over the fence — yes, sir; he got over the fence. I don’t say that Hand got any distance from the fence, but he got over the fence, and I so testified to that fact at Matador. I am sure that Hand was on the side of the fence that I was at the time I commenced shooting at him, and the next time I saw him he was on the other side of the fence getting up. I knew he was between me and the fence; he wan two or three feet over the fence when I commenced shooting, and when I finished shooting he was right close to the fence on the other side getting up. I will say, at least, that Charlie Hand was clear over the fence when I commenced shooting at him, for I backed back as he 'was getting over the fence, and when he got over the fence and started toward me — ’ This testimony was offered and admitted after the state had asked defendant if he did not testify at said former trial, as above set out in quotations, and he stated and testified that he had not so testified. This was while he was on the stand. To which said statement and testimony, as offered, defendant objected for the following reasons: ‘It is hearsay; it is contained in the statement of facts agreed to by the attorneys; it is not the testimony of any witness who heard the defendant so testify; it is a reproduction of his testimony condensed in the statement of facts. Because it is not the question and answer in the form that the stenographer made it, there being a stenographer at that time who took down the testimony, and is now out of the state of Texas.’ ‘That testimony is not signed by the defendant, nor does it purport to be signed by him.’ And which objections were overruled by the court and the testimony admitted, to which ruling of the court the defendant then and there in open court excepted, and tenders this his bill of exceptions No. 1, and asks that the same be signed, approved, and filed as part of the record in this case, which is here accordingly done. Jo A. P. Dickson, Judge 50th Judicial District of Texas.”

The rules for the requisites of a bill of exceptions in a criminal case have been established for a time “whereof the memory of man runneth not to the contrary.” They have so uniformly been adhered to and reiterated, and so many cases and principles cited stating them, that it is unnecessary to now collate the authorities or any of them. We will mention some of these rules which are applicable to the above bill of exception:

1. The allegations thereof should be full and explicit, so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences.

2. They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depend; otherwise they will not be considered.

3. It must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been committed. It must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence or facts proven to render intelligible the ruling excepted to.

4. It cannot be aided either by a statement in reply to a motion for new trial or by the statement of facts.

5. It controls even the statement, of facts.

6. Objections or the mere statement of the ground of objection in the bill is not the certificate of the judge that what is stated is true; it is the mere objections of the party.

7. Inferences will not be indulged to supply omissions in them. Nor will the court, on appeal, supply omissions, nor aid the bills by inferences or presumption.

8. Objections not affirmatively mentioned in the bill are deemed to have been waived.

9. A bill to the admission of evidence is incomplete and insufficient which simply states the grounds of objections to the errors, but fail to state, as matters of fact, the matters upon which the objections were--predicated.

These rules are taken from section 857, p. 557, and section 1123, p. 732 et seq., of Judge White’s Ann. C. C. P. He collates and cites in support of each many of the early decisions of this court. These rules have been adhered to, without any modification of them, by this court down to this very day. A great many cases decided since those collated by Judge White could be cited on each and every one of them, but we deem it a useless task to hunt them up, collate, and cite them now.

It is unnecessary to analyze this bill to show that neither of the rules above stated have been complied with. Reading the bill in connection with them points each one of them out. We think it unquestionable, therefore, that this bill is insufficient to require or authorize this court to review the question attempted to be raised. But. let us take appellant’s objections at the end of the bill in the last paragraph thereof, which are mere objections, and not statements of fact, approved by the judge as such, and consider them. In order to take each one, we will subdivide them by letters as follows:

(a) “It is hearsay.” We answer that it is not hearsay. Whatever an accused states or admits to any person when he is not under arrest, etc., can be proven by anybody who heard him make the admission or statement, and the testimony of such person is not hearsay. So what appellant testified on a former trial of this case is not hearsay.
(b) “It is contained in the statement of facts agreed to by the attorneys.” Certainly because what he had testified to on a former trial was contained in a statement of facts would not make it inadmissible.
(c) “It is not the testimony of any witness who heard the defendant so testify.” Certainly it is not, nor does it purport to be the testimony of any other witness, but purports to be his own testimony.
(d) “It is a reproduction of bis testimony condensed in the statement of facts.” If that is true, then it would be clearly admissible. That it was a condensed statement of his testimony would not make it inadmissible.
(e) “It is not the question and answer in the form that the stenographer made it.” It need not be in question and answer form. All that is necessary is that what is given is a narrative statement of his testimony.
(f) “That the testimony is not signed by the defendant, nor does it purport to be signed by him.” It would not have to be signed by him in order to make it admissible. The testimony given by an accused or any other witness on the final trial of a cause in the trial court is never signed by the witness.

So that, considering each and every one of appellant’s objections, they nor either of them show any error whatever in the ruling of the court.

It will be noticed that the bill of exception does not show, as a statement of facts or otherwise, that it was not agreed by the parties that the said admitted testimony had not been agreed to as the testimony of the appellant on the former trial of the case. Nor does the bill in any way show that no witness was introduced who testified that the appellant had given this testimony on the previous trial. In other words, it by no means excludes the idea that the testimony was not proven up in some of the methods prescribed by law to render it admissible.

“ ‘Former evidence of a witness may be established by the testimony of any person who can swear to it from memory, including a committing magistrate, the stenographer, the county clerk, or a juryman.’ 16 Cyc. 1110; Black v. State, 1 Tex. App. 368; Sullivan v. State, 6 Tex. App. 319 [32 Am. Rep. 580]. * * * It has been the uniform practice of all the courts, both civil and criminal, in this state to permit, when proper, the testimony of a party given on a former trial to be proven by anybody who heard his testimony and can undertake to reproduce it.” Patterson v. State, 63 Tex. Cr. R. 307, 140 S. W. 1133.

The judgment will be affirmed.


author: HARPER, J.

text:
    McGOWEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    Rehearing Denied March 25, 1914.)
    1. Homicide (§ 338) — Evidence—Prejudice.
    Where the difficulty between defendant and deceased grew out of a prior difficulty which engendered ill feeling between the parties, defendant was not prejudiced by the introduction of evidence as to the origin of the unfriendly relations which tended to show that defendant had cause for ill will against deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.] ,
    2. Criminad Law (§ 1171) — Triad^District Attorney — Misconduct.
    Misconduct of a district attorney in making disparaging remarks in regard to a member of the Court of Criminal Appeals in his closing address was not prejudicial to accused or ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    3. Criminad Law (§ 1090) — Matters Review abde — Bidd oe Exceptions — Necessity.
    Matters complained of in a motion for a new trial, to which no bill of exceptions was reserved, cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §8 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4.Criminad Law (§ 936) — New Triad — Surprise.
    Accused was not entitled to a new trial because of surprise by the testimony of a witness whose name was indorsed on the indictment as a witness for the state, especially where no claim of surprise or motion to postpone was made at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dec. Dig. § 936.]
    5.Criminad Law (§ 939) — New Triad — New-dy Discovered Evidence — Diligence.
    Defendant was not entitled to a new trial because of alleged newly discovered evidence 'of a witness whom he knew was present at the homicide, and whom he desired to use to impeach the testimony for the state, since ordinary diligence would have produced the witness at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.] ■
    6. Criminad Law (§ 829) — Triad—Request oe Charge.
    Where instructions given by the court on the question of self-defense aptly presented that issue as made by the testimony, it was not error to refuse other special charges requested on the same question.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    7. Homicide (§ 282) — Murder on Impdied Madice — Evidence.
    In ■ a prosecution for homicide, evidence viewed from the state’s standpoint held, to justify submission of murder on implied malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Jim McGowen was convicted of murdering on implied malice, and he appeals.
    Affirmed.
    F. O. Fuller and Wm. MeMurrey, both of Cold Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was found guilty of murder upon implied malice, and his punishment assessed at seven years’ confinement in the state penitentiary.

The deceased, appellant, and a number of others had been to Cold Springs the day of the homicide. It appears that Willis Mc-Gowen had been indicted charged with the murder of deceased’s brother. On the way home a difficulty arose between Jack Harrison and George McGowen. The state’s contention is that Willis McGowen waited up to the scene of the difficulty, drawing a pistol, uttering threats, etc., and was shot while so doing, when appellant rushed to him, took his pistol out of his hands, ran after Tom Grace, and shot him. Appellant, on the other hand, would have Willis McGowen and appellant acting as peacemakers between Jack Harrison and George McGowen when Willis Mc-Gowen was shot by Tom Grace, and that Grace, after shooting Willis McGowen, circled around, looking back as if intending to shoot again, when appellant got a pistol out of the bosom of Willis McGowen and shot Tom Grace. Testimony was admitted that Willis McGowen was charged with the murder of Tom Grace’s half-brother, upon the promise of the state to show that Tom Grace was a witness for the state in that case, to show motive, etc., for his killing on this occasion. The state failed to make this proof when the testimony was withdrawn. The court, in approving one of the bills of exception relating to this matter, states: “Allowed with the following qualifications: When the district attorney offered this testimony, he proposed to follow it up and show that Tom Grace was a witness in the ease against Willis McGowen (brother of defendant); but, when the district attorney examined the record of that case against Willis McGowen, he found that Tom Grace was not a witness in that case. And the district attorney asked the court to withdraw all the testimony introduced in reference to that case, which the court did, and after that, and immediately after the court withdrew that evidence from the consideration of the jury, the defendant’s counsel introduced the entire record of that case (State v. Willis McGowen) to show that Tom Grace was not a witness in that ease. Mr. Manry, the district attorney, had already stated to the court in the hearing of the jury that he was mistaken when he said that Tom Grace was a witness against Willis McGowen, and in presence of the jury asked the court to withdraw all the testimony in reference thereto.” No testimony was admitted as to whether Willis McGowen was or was not justifiable in killing John Harrison, if he did do so. None of the details of that transaction were admitted, but merely the fact that “Willis McGowen was charged with having killed John Harrison, who was a half-brother of Tom Grace, and he was over here that day, and that was the day Willis McGowen’s case was to be called, and after it had been continued we all started home.”

There can be but little doubt from this record that the difficulty between Jack Harrison and Jim McGowen grew out of the ill will existing between the two families growing out of the killing of John Harrison, that, if the deceased (Tom Grace) did' kill Willis McGowen on this occasion, he did so out of feeling growing out of the killing of John Harrison by Willis McGowen; and, in whatever light we view this transaction, the original cause of ill will, and the promptness of all parties to act, all had its origin and inception, in part at least, out of the first killing, and a jury could not intelligently pass on the respective acts of the parties on this occasion without knowing the origin of the unfriendly relations, and, while the court withdrew the testimony from the jury at the request of appellant, yet we are of the opinion that the fact that Willis McGowen was charged with killing Grace’s half-brother would furnish a reason for the killing of Willis McGowen by Tom Grace as contended by appellant, and such testimony could not and would not be hurtful to this appellant, who contends that, when Grace shot his brother Willis on this occasion, and was circling around as if seeking another opportunity to shoot,.he got the pistol from Willis and fired at Grace. Certainly the action of the court presents no reversible error in the light of the following special charge given at appellant’s request: “Gentlemen of the jury, you are further charged that, if you find beyond a reasonable doubt that if, at the time the defendant, Jim McGowen, fired the fatal shot, if he so fired it, it reasonably appeared to him from the circumstances of the case, viewed from his standpoint, that the deceased was about to shoot him or his brother, Willis McGowen, he was justified in killing deceased, although in fact you, the jury, might believe from the evidence that defendant was in no danger at. the time of being shot by deceased.”

Bills of exception Nos. 3 and 4 were refused by the court, and we do not know why they are copied in the record.

Bill of exception No. S asserts.that the district attorney, in his closing address, made disparaging remarks in regard to a member of this court. If this was done, of course this-was highly improper; but the judge, in approving the bill, adopts the denial of the district attorney, who says he used no such language. Attorney for appellant attaches his affidavit asserting as a fact that such remarks were used; but he does not prove up the bill in compliance with the statute. Without passing on the merits of this controversy, we will content ourselves by saying that such remarks, if used, were entirely out of place; but they could not and would not affect the jury in passing on the guilt or innocence of appellant, and under such circumstances the bill, if properly proven up, would present no reversible error.

There are several matters complained of in the motion for a new trial to which no bill of exceptions was reserved, and of course we cannot review these matters.

The alleged newly discovered testimony does not come within the rules prescribed for the granting of new trials on account thereof. The indictment in this case had the names of Adeline Stanley and Beach Stanley indorsed thereon as witnesses for the state, eonse-quently appellant was charged with notice that they would be used as witnesses, consequently he cannot claim surprise as to their testimony; and, if he was surprised by it, he should then have made his motion to postpone, and not wait until verdict was rendered.

If Lou Curtis was present at the time of the homicide, as contended in the motion for new trial and affidavit, appellant was aware of that fact as well .before as subsequent to the trial, and, knowing that Beach and Adeline Stanley would be witnesses in the case, the exercise of ordinary diligence would have discovered before trial the testimony of the witness Lou Curtis, a witness who is now desired to impeach the two Stan-leys. Judge White, in his annotated procedure, lays down the following five rules essential to granting a new trial on account of newly discovered testimony: First, that the evidence came to his knowledge since the trial; second, that it was not owing to want of due diligence that it was not discovered before the trial; third, that it was material evidence, and. not merely cumulative, corroborative, or collateral; fourth, that it will probably produce a different result; fifth, that it is not simply for the purpose of impeaching a state’s witness; that, if the application is defective in establishing any one of these essentials, a new trial is correctly refused—citing a-long list of authorities in section 1Í49 of his annotated procedure.

In addition to the hereinbefore copied special charge, the court, on the issue of self-defense, instructed the jury: “A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. And a party would have the same right to protect his brother from unlawful violence as he has to protect his own person from such violence, and the same rules announced above would obtain in his behalf. If, from the evidence, you believe the defendant killed the said Tom Grace, but further believe that at the time of so doing the deceased, by his acts (if any), or his acts coupled with his words (if any), caused him to have a reasonable expectation'or fear that the deceased Tom Grace was about to shoot Willis McGowen again (if he did shoot him at all), or was about to shoot him, the defendant, and that, acting under such reasonable expectation or fear, the defendant killed deceased, then you should acquit the defendant, and say by your verdict ‘Not guilty.’ ”

This aptly presented this issue as made by the testimony, and there was no error in refusing the other special charges requested on self-defense.

Appellant contends that the court erred in submitting the issue of murder in the second degree, ably contending that, if the evidence would justify a finding that appellant was guilty of unlawful homicide, yet it would be of no higher degree than manslaughter. We have carefully studied the evidence, and, from the state’s standpoint, we think it raised the issue of murder upon implied malice, and the court did not err in submitting that issue, and the evidence sustains the verdict.

The judgment is affirmed.


author: DAVIDSON, J. PRENDERGAST, P. X, and HARPER, J.

text:
    ALBRIGHT v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    On Motion for Rehearing, April 1, 1914.)
    1. Intoxicating Liquoes (§ 168)—Offenses —Pebsons Liable.
    Where a father ordered his son to get some whisky which belonged to the father and sell it to the purchaser, the father participated in the sale and was a principal in the transaction.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189-192; Dee. Dig. § 168.]
    2. Criminal Law (§ 59)—Parties to Offenses—Misdemeanor.
    In misdemeanor cases, there being no distinction between principals and accomplices, all who participate in any way are treated as principals.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    3. Criminal Law (§ 1186)—Harmless Error-Evidence.
    In a prosecution for unlawfully selling intoxicating liquors, defended on the ground that it was a gift and not a sale, though it were error to exclude testimony that defendant was a liberal hearted man, accommodating to his neighbors, it was not such as to require a reversal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    On Motion for Rehearing.
    4. Intoxicating Liquors (§ 167)—Offenses. —Parties—Accomplice.
    Under the express provisions of Pen. Code 1911, art. 602, a purchaser of intoxicating liquors. in a local option district, though a detective or “spotter,” is not an accomplice, and neither is such person an accomplice under the common law.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 182, 183; Dec. Dig. § 167.]
    Davidson, J., dissenting.
    Appeal from Gregg County Court; J. I-L McHaney, Judge.
    John Albright was convicted for violating the local option law, and he appeals.
    Affirmed.

      McCord & Campbell, of Longview, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER.in Dec. Dig. & Am. Dig. Key-No. Series & Rep'T Indexes

   DAVIDSON, J.

This conviction was for violating the local option law. The state relied upon the testimony of a witness, who says he was employed by the county attorney as a detective to work up local option cases; that he approached appellant and asked him if he could let him have some whisky. Appellant finally let him have a bottle, for which the detective says he paid' him $2. The defendant took the stand and testified that he let - him have the whisky, but did not receive any pay for it, and did not ask any pay. He is sustained by two other witnesses. When the state’s witness approached appellant with the request to let him have whisky, he was busy at work and spoke to one of his sons, who was near by, telling him to get a bottle of whisky out of the wagon and let him have it. The boy demurred and insisted on not doing so, but his father ordered him to do so, and he finally handed the witness the whisky. The son and the other witnesses all testify that this was the transaction, and no money passed between the parties. This, under our decisions, would be a matter for the jury to decide. See Franklin v. State, 164 S. W. 375, recently decided.

The court charged the jury with reference to principals as follows: “All persons who are present and participate by acts, or encourage by words or gestures, in the commission of an offense, are principals. Now if you find and believe from the testimony, beyond a reasonable doubt, that the defendant did in Gregg county, Tex., on or about the date alleged, acting alone or with his son, sell to the witness T. G. Livsey a bottle of whisky, as alleged, then find the defendant guilty,” etc. Appellant was either a principal in this transaction or was not guilty.' The whisky belonged to him, and he ordered his son to hand the whisky to the alleged purchaser. He was therefore participating in the sale, if the sale occurred, and would be a principal in the transaction. But if he was guilty at all, it being a misdemeanor, he would be treated as a principal, for in misdemeanors principals and accomplices are treated as principals. Such has been the rule in Texas since the rendition of the opinion in Houston v. State, 13 Tex. App. 595.

There was a bill of exceptions reserved to 'the refusal of the court to permit appellant to prove that defendant was a liberal hearted man, accommodating to his neighbors, etc. The court may have properly admitted this testimony, but we do not think it of such importance as to require the reversal of the judgment, even if the ruling was error.

Taking the record as we find it, under present decisions, we believe the judgment ought to be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed out of deference to the opinion of my Brethren, citing, the recent case of Franklin v. State, 164 S. W. 375. I did not then believe the judgment ought to be affirmed; nor do I yet believe on the facts appellant ought to be convicted. The state’s witness is named Livsey. He testified that he got the whisky from appellant under the following circumstances: “I saw the defendant and asked him if he had any whisky; he said he did. I told him I wanted some; he said all right, and called his son and told him to let me have a bottle of whisky that was in the wagon. His son let me have the bottle of whisky, and I paid the defendant $2 for it.” He further testified: “I was employed by the county attorney to hunt for ‘bootleggers,’ and was paid some money once or twice. I got money along as I needed it. You might call me a spotter or detective. I was employed to. find out if anybody was selling whisky.” The defendant, Toney Al-bright, and Elmer Albright testified positively that no such sale occurred; that this “detective” or “spotter” came to where their father was and asked him for whisky, and was informed that he had no whisky but that his son Toney Albright had some. Toney Albright did not want to let Livsey have the whisky, but his father told him to let him have it; he was a good fellow and was all right. All three of these witnesses testified positively that it was a gift and not a sale. The usual rule is that the jury are the exclusive judges of the facts proved and credibility of the witnesses, and under the local option law a purchaser is said not to be an accomplice, and his testimony would afford the basis for a conviction. The legislature so provided, and it is not my business here to question the wisdom of this policy or act of the Legislature, but I am persuaded that this statute does not cover such a witness as this, and was not intended to do so. This statute, as I understand it, does not apply to a case where the “detective” or “spotter” or “spy” himself originates the ease and induces men to commit crime. If such are the facts, then he would be a particeps crimi-nis under the rule laid down by this court in the cases of Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071, and Bush v. State, 151 S. W. 554. Those cases draw the distinction between men who are ferreting out crime and officers who are ferreting out crime, and those who institute and bring about an occasion for crime and induce the crime. A purchaser may be a witness who does not need corroboration, where he is a purchaser under ordinary circumstances, but where, as a detective or spy or spotter, he is employed and receives a salary to go around and institute and organize crimes and cases against people, in my judgment, he does not come within the provision of the legislative enactment. He himself is a criminal in that he brings about a criminal transaction, and sets himself to work to do so in order that he may punish people for the pay that his employer gives him. In that sort of a ease he himself is a criminal, a particeps criminis, and needs corroboration. However, my Brethren believe the case ought to be affirmed. These are my individual views above expressed. I do not believe this judgment ought to be affirmed on the testimony of this man Liv-sey, who himself brought about and induced this crime, if it is one. Of course all the other testimony shows that appellant did hot sell any whisky, but it was a present to this “detective” or “spotter.”

In my judgment this motion for rehearing ought to be granted, and the judgment reversed, but, in accordance with the wishes of by Brethren and their views of it, it will be overruled.

PRENDERGAST, P. X, and HARPER, J.

We copy in full the evidence-of the state’s witness Livsey, as follows: “I live in Rusk county, Tex. Know the defendant, John Al-bright. On the morning of September 29, 1913, I went down to the fair grounds in Longview, Gregg county, Tex. Saw the defendant, John Albright, and asked him if he had any whisky. He said he did. I told him I wanted some. He said all right, and called his son and told him to let me have a bottle of whisky that was in the wagon. His son let me have a bottle of whisky, and I paid the defendant $2 for it. This occurred in Longview, Gregg county, Tex. (The state then exhibited to the witness a bottle of I. W. Harper whisky; witness stating, ‘That is the bottle I got from the defendant.’)” Cross-examined: “I was employed by the county attorney to hunt for ‘bootleggers,’ and was paid some money once or twice. I got as much as $15. I would get money along as I needed it. You might call me a spotter or detective. I was employed to find out if anybody was selling' whisky.”

The reporter will copy in full the balance of the statement of facts. Our statute expressly enacts that such witness as Livsey “shall not constitute such person an accomplice.” Article 602, Pen. Code. That he was an accomplice was in no way raised, suggested, or hinted at in this court or the court below, until in Judge DAVIDSON’S opinion on rehearing above. Even if the question had been raised in this or the court below, and there had been no statute as above cited, said witness would not have been an accomplice. Minter v. State, 159 S. W. 300; Holmes v. State, 156 S. W. 1172, and authorities cited and quoted in said decisions; Ausbrook v. State, 156 S. W. 1178. Neither of the cases of Dever or Bush, cited by Judge DAVIDSON, are in point, and especially as there was no statute applying to either of those cases, as there is to this.

This motion for rehearing in this case is properly overruled, and the case, and also the Eranklin Case, too, correctly affirmed.

The following is the balance of the evidence referred to in the opinion of the court:

“John Albright, the defendant, being sworn, testified that he did not sell the state’s witness T. G. Livsey any whisky; that on the morning of September 29, 1913, the state’s witness Livsey came down to the faiy grounds, ‘where I was at work, and told me he was going hunting and wanted some whisky, and asked me if I had any. I told him that my son Toney Albright had some in his wagon, and I called my son and told him to let Livsey have a bottle of whis-ky. My son said he did not want to do it; and I said, “Oh, Livsey was a good fellow and let him have it;” and I suppose he did. Livsey drove up to the little house that I was running a restaurant in, at the fair grounds, and did not get out of his buggy, and when my son went to his wagon, which was at the back of the house, Livsey drove around to the back of the house. I state positively that I did not sell Livsey a bottle of whisky, and that he did not pay me $2 for some or any other amount. I do not deny the fact that I drink whisky, and when I have it I do not refuse to let any one who would ask me for some have it, but I do not sell it.’ Cross-examined: T frequently order whisky by the case, and I have oftentimes given to my friends as much as a quart at a time. No, I never did ship a barrel of whisky to Gamp’s Switch.’
“Toney Albright testified: ‘The defendant is my father. I am a married man. I let T. G. Livsey have a bottle of whisky on the 29th day of September, 1913. On that morning I was going to the country in my wagon. I went by the express office and got a case of whisky that I had ordered and put same in my wagon. I then went by the fair grounds, where my father was at work, to get some canvass roofing to take out in my wagon. While I was there T. G. Livsey came out there in a buggy and drove up to where my father was and said he was going hunting and asked him for some whisky. My father told him that he did not have any, but told Livsey that I had some in my wágon, and told me to let Livsey have a bottle. I at first refused, but father said, “Oh, let Green have some; that he was a good fellow.” Livsey then drove around to the back of the house, where my wagon was. I then went to my wagon and got a bottle of I. W. Harper whisky and give it to Mr. Livsey.. He did not pay me a cent, nor did he pay my father, for it. Livsey did not get out of his buggy.’ Cross-examined: T was present when Livsey drove up. He did not get out of his buggy. He asked my father to let him have some whisky, and my father told him that he did not have any, but that I had some, and he then requested me to let Livsey have a bottle, which I did, and he did not give my father any money for same, neither did he pay me anything for it. I got the whisky from the express office in the town of Longview, Gregg county, Tex.,-that morning. This whisky was shipped to me, and I receipted the express office for same.’
“Elmer Albright testified for the defendant: T heard my brother Toney Albright refuse to let Livsey have .the whisky, but my father, John Albright, said, “Let Livsey have it; that he was a good fellow.” Then my brother let Livsey have a bottle of whisky. I was present when Livsey was talking to my father and when my brother let him have the whisky, and knew that he did not pay anything for it.’ Gross-examined: ‘Mr. Livsey came up in Ms buggy and did not get out, when my father reguested Toney to let Livsey have a bottle of whisky, my brother did not want to let him have it, but my father told him that Livsey was a good fellow and to let him have it, which he did. Livsey drove his buggy around the house to where the wagon was and got the whisky. He did not pay anything for it.’
“Upon the trial of this case it was agreed by and between the state’s counsel and the attorney for the defendant that local option was in effect in Gregg county, Tex., at the date of the alleged sale and at the time of the trial, and had been in effect for several years prior thereto, and it was further agreed by and between the parties that all orders upon the minutes of the commissioners’ court record of said county, pertaining to the local option election heretofore held in said county, was considered introduced in evidence upon the trial of said cause.
“We, McCord and Campbell, attorneys for defendant, and P. A. Taylor, county attorney of Gregg county, Tex., hereby agree that the above and foregoing is a true and correct statement of the evidence and all the evidence introduced on the trial of above cause.”