text:
    PORTWOOD v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Perjury (§ 29) — Indictment—Proof.
    Where an indictment for perjury alleged that accused testified that he did not bet at a game played with dice with two persons designated, or any other person, at a certain time- and place or at any other time, it was necessary, to sustain a conviction, that the state prove that accused did bet at a game played with dice with the persons designated at the time and place alleged, and a conviction could not be sustained by proof 'of other facts and circumstances showing that accused may have committed perjury in some other manner or about some other matter.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    2. Perjury (§ 37) — Indictment — Instructions — Variance.
    Where an indictment charged accused with committing perjury in testifying that he did not bet at a game played with dice with two persons named “and” other persons at a specified time and place, an instruction, that accused would be guilty if he falsely testified before the grand jury that he did not bet with the persons designated “or” any other person at a game played with dice, etc., was not objectionable as failing to submit the perjury assigned in the indictment.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    3. Perjury (§ 37) — Instructions—Defensive Matter — Submission.
    Where, in a prosecution for perjury in testifying before the granid jury that accused did not bet at a game played with dice, with two persons specified and others, at a specified time and place, there were two issues presented by the evidence — one that he was asked before the grand jury if he did not play at the game with the persons specified at such time and place, and the other that he was not asked particularly about any game and did not testify about any particular game, and therefore did not testify that he did not bet at a game played with the parties specified — it was error to refuse a request to charge that he could only be convicted of falsely testifying as alleged in the indictment, and could not be convicted if it was found that he only testified that he did not bet at any game, and was not asked and did not testify about any particular game, under the rule that accused is entitled to have defensive matter sustained by the evidence affirmatively submitted to the jury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    4. Criminal Law (§ 857) — Trial—Misconduct of Jury — Reference to Accused’s Failure to Testify.
    It is misconduct for members of a jury, during their deliberations, to comment on the failure of accused to testify and permit such failure to influence them in arriving at their verdict.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2054-2055; 857.] see Criminal Dec. Dig. §
    5. Gamins (§ 67) — Betting — Thing of Value.
    It is not an offense to bet at a game unless something of value is bet.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 135-139; Dec. Dig. § 67.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Patrick Portwood was convicted of perjury, and he appeals.
    Reversed and remanded.
    H. C. Connor, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, 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

   DAVIDSON, J.

Appellant was convicted of perjury, and was given two years in the penitentiary.

The indictment charges the perjury as having been committed before the grand jury. It is alleged that it was material inquiry before that body whether appellant bet at a game played with dice “with Claude Day, Jeff Dickson and others on a branch near the home of defendant on or about the 4th day of December, 1911.”- That appellant testified in substance and in effect that “he did not bet at a game played with dice with Claude Day, Jeff Dickson or any other person, on the branch near his home in Hopkins county on or about the 4th day of December, 1911, or at any other time.” The traverse in the indictment is as follows: “Whereas, in truth and in fact, as he, the said Patrick Portwood, then and there well knew, he, the said Patrick Portwood, did unlawfully bet at a game played with dice, with Claude Day, Jeff Dickson and other persons, on the branch near his home, in Hopkins county, Texas, on or about the 4th day of December, 1911, and which said statement so made by the said .Patrick Portwood before and to said grand jury was willfully and deliberately made, and was willfully and deliberately false, as he, the said Patrick Portwood, then and there well knew.” It was necessary for the state to prove by two credible witnesses,' or one credible witness strongly corroborated by other testimony, that appellant did bet at a game played with dice, with Claude Day, Jeff Dickson, and others, on the branch near his home in Hopkins county, Tex., on or about the 4th day of December, 1911. Unless this was shown by the necessary quantum of proof appellant would not be guilty of the assigned perjury. It is not the law that he could be convicted by showing other facts and circumstances tending to show he may have committed perjury in some other manner or about some other matter.

The court charged the jury that appellant would be guilty if the jury should believe that appellant testified before the grand jury that he had not bet with Claude Day, Jeff Dickson, or any other person, at a game played with dice, on the branch .near his home in Hopkins county, Tex., on or about the 4th day of December, 1911. Proper exceptions were taken to this charge on the ground, among other things, that it did not submit the inquiry before the grand jury and the allegations in the indictment. The indictment had charged him with swearing falsely in testifying that he had not bet at a game played with dice with Claude Day, Jeff Dickson, and other persons. The court instructed the jury that if he had bet with Claude Day, Jeff Dickson, or any other person he would be guilty. We think this exception was well taken. The court should have submitted the assigned perjury which charged him with betting at the game of dice played with Claude Day, Jeff Dickson, and other persons. Upon another trial the court should submit the issues set forth in the indictment. My Brethren think there is no error in the above matter. Hutcherson v. State, 33 Tex. Or. R. 67, 24 S. W. 908. The writer’s views are above expressed.

It is a right serious question as to whether or not the state proved its ease by the necessary quantum of proof, that is, by two fit-nesses, or by one witness strongly corroborated, to the effect that appellant did bet at the time and place mentioned, and upon which the perjury is assigned; and it is also a serious question under the evidence as to whether he was asked by the grand jury as to whether or not he bet at this particular game. The evidence is in serious conflict, to say the least of it, that the grand jury did not ask about this particular case, and there is quite a lot of evidence coming from the members of the grand jury themselves that he was not asked about any particular game, or the parties engaged in it.

For the state Jeff Dickson testified: “I know the defendant, Patrick Portwood. I have played craps with him on a little branch about 200 yards from his house; that was in 1911, about the 4th day of December; several of us were in that game. Patrick Portwood played in that game, and he bet in that game; that was in 1911, in Hopkins county,. Tex.” It will be noticed this witness said they played craps. He does not state that they played any game played with dice; but, conceding that the game of craps is played with dice, this is rather a loose way of putting the ease when evidence could have been elicited to show the fact The conclusion is left to inference.

Sam Figures testified for the state: “I know the defendant, Patrick Portwood. I have shot craps in a game when Patrick Portwood was present in the game. It was out here on North Caney near Patrick Port-wood’s house on a branch. It has been so long now that it is hard for me to remember who was in that game. Claude Day and Jeff Dickson were in it. I think it was on Sunday; it was about the third Sunday in December, I suppose; it may have been about the 4th of December; it was in December. That was the only crap game I was ever in on that branch in December. Patrick Portwood was there present I think at the time the game was played. I could not say whether he was in the game or not — whether he was shooting or not — but he was there. I could not say for sure whether he shot craps at the time, because I wasn’t paying much attention, because I was like other people — playing for the ‘mon.’ I did not shoot with him at that time. If he bet money at that time on that game I don’t remember; the one I was most betting with was Mr. Day; he was the man that had the bulk of the money.”

Henry Pharr testified for the state: “In August, 1912, I was acting in the capacity of assistant county attorney. I attended the justice courts. I was out at Mr. Lee’s court, the Eighth precinct, along in August representing the state on some gaming cases; one of them being against Patrick Portwood. I had a conversation with him at that time in regard to a case pending at that time against him. I had a conversation with the negro in regard to a crap game that was played on the branch near his house about the 4th day of December, 1911. He said he played in that game at that time and place.”

Henry Lee testified: “During the year 1912 and up to that time I held the official position as justice of the peace of the Eighth precinct in Hopkins county. This book hand-' ed me is the docket of my precinct. I made the entries in this case on page 172 myself— No. 2,137, State of Texas v. Patrick Port-wood. Those entries are true and correct. I suppose Mr. Briggs has the complaint and other papers. I drew these papers that are handed me; they are the papers in the Patrick Portwood gaming case; they were before me when I was justice of the peace. This judgment and entry here is based upon these papers. Patrick Portwood entered his plea of guilty to this charge of gaming as shown by this docket. When I called Patrick Portwood’s case, he claimed he wasn’t there (meaning at the game); I think he claimed he was at Cooper. I asked him what he was going to do about his case, and he coughed around a little, and finally he said, T will just give you the $19.80.’ He did not say anything at that time about whether he was down there in that game that day. I told him he would not give us anything. I told him that because he was a negro we didn’t want his money, but I told him if he was in the crap game, and if we got evidence enough to show it, we were going to get some of it, and finally Patrick said he was down there that evening, and he paid it off.” This is practically the state’s case.

S. G. Smith, a member of the grand jury, testified: “I remember what the defendant was interrogated about when he was before the grand jury. I-Ie was interrogated about gaming. He said he didn’t know of any games at all being played in his community by him or anybody else. I don’t think he was asked about any game with any particular person.”

A. J. Titus, foreman of the grand jury, testified for the state as follows: “I don’t remember whether he was asked anything about who was in the game. I don’t remember whether he was asked as to the date.”

Willis Brant, another member of the grand jury, testified as follows: “We had Patrick Portwood before that grand jury as a witness. He was there, and we didn’t know what he was sent for, and nobody on the grand jury knew what he was a witness for, and we had him in there and asked him who summoned him, and he said Mr. Teer summoned him, and we told him to stand aside until Mr. Teer come in and we would find out what he summoned him for, and that evening before adjourning George Teer hadn’t returned, and we brought Patrick Port-wood back and questioned him right sharply again, and he said he hadn’t done anything, and we didn’t know what he had done, so we dismissed him. Q. Do you know whether or not you asked him if he didn’t bet at a game played with dice with Jeff Dickson and Claude Day? A. We asked him if he hadn’t played. We know darkies all play, and we had a suspicion. We just asked him about gaming, or if he knowed of any. We didn’t call his attention to any particular game, just asked him if he hadn’t been gaming. George Teer wasn’t there. When George came he wanted to know what he told, and we said he didn’t tell anything; he was gone.” On cross-examination he said: “I didn’t hear Mr. Sweeton or Mr. Titus ask Patrick Portwood anything about playing a game with Dickson. As I said, there were no names called, because we knew nothing, and we had no foundation to work on; he was sent there and we didn’t know what he was sent for.” This is a sufficient quotation from the record to show the two issues presented.

The court’s charge is attacked because it failed to submit the issues raised by the evidence, and failed to instruct the jury that they should acquit the defendant unless they believed that he swore before the grand jury that he did not bet at the game played with dice at the time and place alleged with Claude Day and Jeff Dickson and others, and in failing to further instruct them that if they had a reasonable doubt as to whether he so testified they should acquit, and in failing to instruct the jury to acquit the defendant unless they believed he bet at a game played with dice, with the said Claude Day and Jeff Dickson. These issues were raised by the testimony of S. G. Smith, A. J. Titus, and Willis Brant, who were members of the grand jury. Said Smith and Brant both testified that the defendant was not questioned as to whether he bet at a game played with dice, and that he only testified before the grand jury that he did not play at any game. And the witness Titus testified that defendant was only asked if he knew of any gaming on the branch near his house, and that he was not asked anything about a game with Claude Day and Jeff Dickson at any time, and the witness Titus did not testify that defendant was questioned concerning any game played with dice, and each of said witnesses testified that defendant’s attention was not called to a game played with dice, with Claude Day and Jeff Dickson, and that he was simply questioned about gaming generally. And defendant requested special instructions submitting said issues to the jury, which were refused by the court. Appellant requested the following charge: “The defendant is charged with falsely testifying before the grand jury, in substance and effect, that he did not bet at a game played with dice with Claude Day and Jeff Dickson or any other person on the branch near his home in Hopkins county, Tex., on or about the 4th day of December, 1911. The burden of proof is upon the state to prove the alleged false statement beyond a reasonable doubt, and, unless you believe beyond a reasonable doubt that the state has done so, you will acquit the defendant.” The further charge was also asked: “If you believe the defendant swore falsely before the grand jury that he did not know of any gaming, or that he hadn’t played at any game, or that he hadn’t played at a game with dice on the branch near his home, or that he hadn’t played at a game with Claude Day, Jeff Dickson, or any other person, and you further believe said testimony was false, you would not be authorized to convict him unless you further believe beyond a reasonable doubt that the defendant also testified before said grand jury that he did not bet at a game played with Claude Day and Jeff Dickson on the branch near his home in Hopkins county, Tex., on or about the 4th day of December, 1911.” The court was further requested to instruct the jury: “If you believe from the evidence that the defendant swore falsely before the grand jury, still you will not be authorized to return a verdict of guilty unless you further believe beyond a reasonable doubt that the false statement, if any, was substantially the same as set out in the indictment.”

It will be seen that the issues are sharply drawn. Enough of the testimony has been stated to show that there were two issues presented by the facts: One that he was asked before the grand jury if he did not play at this particular game with Claude Day, Jeff Dickson, and others on the branch near his (appellant’s) house on the 4th day of December, 1911; the other, that he was not asked particularly about any game, and did not, therefore, testify about any particular game; and further, therefore, that he did not testify that he did not bet at a game played with the parties mentioned. It is too well settled now for discussion that the accused is entitled to an affirmative presentation of his theories of the case, or any theory favorable to him presented by the evidence. The court did not submit the issue and refused to give the requested instructions authorizing the jury to acquit, from the standpoint that he was not asked about this particular game, and therefore did not swear falsely about the matter. If he was not asked about this particular game at the time and place mentioned, but just asked generally about gaming, the jury would not be authorized to convict under the latter theory. The indictment had not so charged, and some of the evidence is to the effect that he was not asked about that game, but just asked generally. The court was in error in not so instructing, and was in error in refusing the requested instructions. See Simms v. State, 148 S. W. 786. In that case Judge •Harper said: “We thoroughly agree with defendant that it is the law of this state, and mandatory on the court, to charge on every theory of defense brought out by the testimony, so it is useless to discuss the authorities cited by appellant.” It would therefore follow that the court should have instructed the jury that if the defendant swore falsely in that he did not know of any gaming, yet if his attention was not called to the particular game upon which the perjury is assigned, he could not be convicted under this indictment. See, also, Davis v. State, 63 Tex. Cr. R. 484, 141 S. W. 93. In the Davis Case Judge Prendergast, speaking for the court, said: “There is an unbroken line of decisions of this court which hold, in effect, that a defendant is entitled to a distinct and affirmative, and not merely an implied or negative .presentation of the issues which arise upon his evidence, in order to prevent the jury from ignoring his defenses and to conduct them to a proper verdict if they find his evidence to be true where such issues are specially requested by special charges of the appellant on the trial.”

Another question is presented: The jury after their retirement discussed the failure of the defendant to testify. This is shown by the affidavit of T. B. Summers, who, in effect, states, when the jury first retired to consider their verdict, on the first ballot they stood five for conviction and six for acquittal, and stood that way for some time; that during their deliberations, and before they reached a verdict, and while some of the jurors were for acquittal, the exact number affiant cannot state, some member of the jury spoke up and said that if the defendant was not guilty he did not see why they did not put him on and prove it, and two or three other members of the jury said, “That is what I say,” said statements were spoken loud enough for all of the jurors to have heard it. Affiant is unable to state just when this occurred, but it was before they reached a verdict, and while some of the jurors were for acquittal. That after this discussion of the defendant’s failure to testify, just how long affiant is unable to state, the jury returned a verdict of guilty. This may not occur upon another trial, but is sufficient to reverse this judgment. See Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624; Will Robbins v. State, 155 S. W. 936, from Robertson county, decided at the recent •term of this court. Summers’ affidavit stands unimpeached and uncontroverted. The writer does not care to discuss this question. 'The authorities in addition to those two cited, as well as the statute, prohibit the discussion of the failure of a defendant to testify.

Appellant presented an application for a continuance, which was overruled. It is not deemed necessary to discuss that matter, as it may not occur upon another trial.

Appellant seriously attacks the sufficiency of the evidence. Inasmuch as the judgment is reversed upon other questions, we will not now decide that issue. But we desire to say this testimony might have been strengthened evidently as shown by the record; for instance, if appellant bet at the game, in order to make him guilty of a violation of the law, he would have to bet something of value. We can only arrive at the fact that something of value was bet by the use of the expression by the witnesses that defendant bet at the game. That would be but an inference, when, if as a matter of fact he did bet at the game, the witness who testifiéd that he did so bet could have readily testified what he bet. It is not an offense to bet at a game unless something of value is bet, and therefore it would not be a violation of the law. While this may not be reversible, yet the facts ought to be more explicit. The grand jury are not authorized to investigate anything but violations of the law. We mention this simply to show the loose manner in which this case was tried on the facts.

There are other questions of more or less weakness that might be strengthened upon another trial if appellant was in fact guilty. If appellant is guilty, this case can be made much clearer upon another trial.

The judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    PALMER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    On Rehearing, Oct. 22, 1913.)
    1. ROBBERY (§ 27) — INSTRUCTIONS.
    An instruction in a prosecution for robbery that if accused unlawfully made an assault upon another, and by putting him in fear of life or bodily injury did then and there fraudulently take from his person $50 in money, or any other sum, with intent to appropriate it to his own use, he would be guilty as charged, was correct.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 38-40; Dec. Dig. § 27.]
    2. Robbery (§ 27) — Instructions—Robbery by Violence — Putting in Fear oe Life.
    An instruction in a robbery case that if accused assaulted another, and then and there by violence and putting in fear the said other did fraudulently take certain money from his possession and person, he would be guilty was not objectionable for failure to add “of life or bodily injury,” where the indictment also charged that the robbery was committed by “violence”; it not being necessary, where violence was charged, to also instruct with reference to putting “in fear of life or bodily injury.”
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 38-40; Dec. Dig. § 27.]
    3. Robbery (§ 26) — Evidence — Question for Jury.
    In a prosecution for robbery charged to have been committed by “violence” and also by putting “in fear of life or bodily injury,” evidence held to make both of such questions issues for the jury.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 39; Dec. Dig. § 26.]
    On Rehearing.
    4. Cbiminal Law (§ 815) — Instructions— Accused’s Theory of Case.
    Where accused’s testimony in a robbery prosecution showed that he did not commit the offense of robbery and may not have been guilty of any offense, it was error to fail to instruct that if the jury believed accused’s evidence, or had a reasonable doubt of it, they should acquit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig.
    5. Robbery (§ 4) — Offenses.
    If accused had in fact won the money claimed to have been taken by him by robbery at the time the banker in a game of chance took the money and placed it in “the game,” he would not be guilty of robbery if he picked the money, up from the table and went off with it, even if the other elements of robbery were present.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 4; Dec. Dig. § 4.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Marshall Palmer was convicted of robbery, and appeals.
    Reversed and remanded.
    R. J. McMurrey, of Anahuac, for appellant. C. E.'Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, P. J.

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

This record is before us without bills of exception, and the matters presented are found in the motion for new trial. The charge is criticised because it instructed the jury that if they should believe that an assault was made by appellant upon John Henry Burton, the party who is alleged to have been robbed, and then and there by violence and putting in fear the said Burton did fraudulently take from the person of said person, without his consent and against the will of the said Burton, the money described, or part of it, he would be guilty of robbery, in that the law is that the assault or violence and putting in fear must put the alleged injured party in fear of life or bodily injury; hence the court erred in not properly defining the law to the jury. Another ground alleged is, the defendant having shown that Burton had taken $5 from him, and that all the defendant did was to pick up $5 from the table where the parties were gambling, which Burton had taken from him, defendant, hence the court erred in not instructing the jury upon this phase of the ease, and informing the jury that it would not be robbery for the defendant to recover his own specific property by violence from the said Burton.

The court charged the jury that if appellant unlawfully made an assault upon the person of John Henry Burton, and then arid there, by putting in fear the said Burton of life or bodily injury, did then and there fraudulently take from the person and possession, etc., $50 in money, or did so take any sum of money with the intent to appropriate the same to the use and benefit of him, etc., he would be guilty as charged. This is correct, and not subject to criticism. The court also charged the jury that if appellant did unlawfully and willfully make an assault upon the person of Burton, and then and there by violence and putting in fear the said Burton did fraudulently take from the person and possession of the said Burton, without his consent, etc., $50, or any sum with intent to appropriate it, he would be guilty.

The facts for the state show, by the witness Mosley: “He (referring to Burton) was robbed in the morning, as nigh as I can come to it, about 8 or 9 o’clock. I was right in the tent, lying down on a cot, when it happened. The first thing that attracted my attention, I was lying with my back to the boys, and I heard one say, ‘Feel him and see if he has got a gun,’ and at that time I turned over and looked, but it was not that man that was feeling of him; it was another. This man here had a pistol holding it right to the fellow that this other man was feeling of. He felt over him, and said, ‘No, he ain’t got no gun,’ and when he said that this fellow, if this man is the same one — he favors him— but I couldn’t swear that it is the same man. The other fellow was the one that was going through him, but this one had his gun pointing toward him. When they got through the bright one walked on out, and went on down the canal. Just as soon as they got outside this John Henry Burton reported that they had robbed him of $50; he reported it, and they went to take this fellow, and they overtaken this man they called Marshall Palmer. When they started after him they started right down northeast from the camp, as nigh as I can say. I stepped outside the tent to see what they was going to do, and Marshall Palmer was way down the canal; he was walking at first, but after they started after him he struck a trot right down the side of the canal. Yes, sir; there was another fellow there, but they called the bright-looking one, Marshall Palmer. This man here seems to be brighter than he was. I did not see him when they brought him to jail, but I saw him when I come here as a witness. This Burton said that they had robbed him of $50. This fellow reported to a white man that Marshall Palmer had robbed him of $50, said ‘He has taken $50 away from me.’ No, sir; they didn’t catch him, they say. I don’t know why they didn’t catch him. I know why they say they didn’t catch him, but don’t know why, I did not go with them, a white man went with this John Henry Burton, but he is not the man that got killed; it was a different man that got killed. They didn’t get Marshall Palmer. This happened along about the first of spring when I was out there; it happened in 1909, in Chambers county, state of Texas.” The cross-examination followed the examination in chief and the witness stated he did not see the parties take any money from Burton, and could not swear they did. He denied there was any gambling table or cot used for that purpose at the time the money was taken, and he further says he would not swear positively that this was the man, because he had never seen him previously, but says he favors him. The whole testimony of this witness is to the effect that, while' he would not swear positively to it being defendant, yet he was reasonably certain that ir. was he; he says he looks like the same fellow now, and he is satisfied it is he.' He further states: “When I turned over I saw two men; one had a pistol, and the other was searching another man. When they went out Burton said he had been robbed of $50.”

The sheriff, Mr. 'La Four, testified that on account of this matter he went out to the camp where these people were, and where this matter is said to have occurred; that he failed to find the defendant; used diligence to find him as usual under such circumstances by trying to trace him in his flight; that he made trips to several places, and finally located him at Little Rock, Ark., where he was arrested. It ‘seems that Burton was a transient fellow, and they never did find him, or any of the parties who were present at the time, except the witness Mlosley. He mentioned where he had located some of them or understood them to be, but failed to get them as witnesses, as they were out of the state. He further states on cross-examination that while he was attempting to arrest appellant he had two warrants, one for highway robbery, and the other for murder. “I did not know John Henry Burton; did not know any of them out there; never seen them; they just come in there to do some public work. I could not swear to this jury that Marshall Palmer robbed John Henry Burton. I wasn’t there; nor could I tell this jury that Marshall Palmer got $50 from Burton.”

Defendant took the stand in his own behalf, and said the way the matter came up was on this wise: “This fellow was dealing a banking game; he was running a gambling house, and I bet him $5 on the deuce against the seven of hearts, and he turned the seven of diamonds in the door. The seven pops out on the deck. I bet on the deuce, and had the best of it, and he turned the seven in the door again, and he took my $5 and threw it over in his game. I said, ‘You don’t win that because I have got two sevens out on the deck, and the last seven is in the deck. He kept my $5, and threw it over in the game. I picked up the $5, and got my coat and pistol and walked on out and up the canal. Two white men rode out on horses and started to shooting at me with Winchester; they both had Winchesters. I tried to jump across the ditch and got on the far side of the canal, and they were shooting at me, and I shot back. Henry Burton run a gambling house, and we all gambled all night principally; had a regular table there, and John Henry Burton run it.” There are a lot of details gone into on cross-examination of the defendant. Appellant stated he had known Burton in Louisiana at Opelousas. “I come from Memphis to Little Rock. I run to Memphis because I was afraid of those men. I hadn’t done nothing. I don’t know who got killed out there on the canal; it was a white man. I ain’t killed nobody, but it was laid to me. I got shot, and have a wound here to show I got shot in the trouble, but I did not kill any one; they killed him shooting at me. I must have shot six or eight times, I had nine shells and shot them up, and then picked up and run. Just prior to the time I left the tent there where me and John Henry Burton was, me aud him had been gambling. I didn’t rob him, I worked for that $5. * * * I started on down the canal, and did not strike a trot until these fellows began shooting at me. They rode up to me, and said, ‘Stop and give me that pistol,’ and I said, ‘What pistol V’ I said, ‘No, I can’t give it up.’ They said, ‘Give us that money,’ and I said, ‘That is my money,’ and they said, ‘Didn’t you take some money from Burton?’ and I said, ‘No’. They wanted me to give the money up. I never stole any money from anybody in my life. They told me to stop and give them the pistol, but I did not give it to them. I don’t know Charles Dildone, and I don’t know whether he was there or not. The reason I run off and left my wife was because she couldn’t follow me; she couldn’t keep up with my gaits, not at that time she couldn’t. I stopped at Beaumont that night, but I did not see Mr. Giles, the sheriff, hunting for me that night. I don’t know whether they went to my home or not. I didn’t stop at home; I stopped in town. I stayed there until next morning, and then went to Shreveport; then to Vicksburg; then to Memphis; then to Cairo; then to St. Louis; then to Kansas City; then to Omaha; then to Denver; then to Pueblo; then to Oklahoma; then to Glover; then to Phoenix; then to El Paso; then back to Denver; then to McAllister, Okl; then from there I think I went to this place Calvin, Okl., — that is 33 miles • from there; then to Memphis; then to Little Rock, and got arrested there. When I left from over there I knew that one man had been killed. I was a stranger in the place, and the man that was killed was a white man.” This is, in substance, the case.

We are of opinion that the contentions of appellant present no such error, if error at all, that would require a reversal. The court, under the allegations of the indictment, was authorized to charge upon both phases of the statute, and did so. Applying the law to the case, the court instructed the jury as follows: “Under this definition you are instructed that if you believe from the evidence, beyond a reasonable doubt, that the defendant, on or about the 7th day of March, 1909, in the county of Chambers and state of Texas, as alleged in the indictment, did unlawfully and willfully make an assault upon the person of said John Henry Burton, and then and there by putting the said John Henry Burton in fear of life or bodily injury, did then and there fraudulently take from the person and possession,” etc., they would convict. This is not subject to the criticism, contained in the motion for new trial, that the court failed to submit in connection with the word “fear” the other clause, “of life or bodily injury.” This was one of the allegations of the indictment. The court properly applied the law to that phase of the indictment. Charging the other phase, he instructed the jury that if defendant made the assault contemplated by the statute upon the person of John Henry Burton, and then and there by violence and putting in fear the said John Henry Burton did fraudulently take from the person and possession, etc., he would be guilty. We suppose the criticism is directed against this portion of the charge. If so, we are of opinion it is without merit. The indictment also charges that appellant did “by violence” commit the offense of robbery. The court was submitting that allegation in the indictment which was justified by the statute. The court was correct in submitting both theories of the state. The evidence would justify the court in submitting both allegations, and it was not necessary in the latter instance, where “violence” was charged, to instruct the jury with reference to putting “in fear of life or bodily injury.” We are satisfied that the court properly submitted these issues to the jury, and the criticisms contained in the motion for new trial are not legally justified.

It is insisted the evidence is not sufficient. We are of opinion, however, this contention is not well taken.. Mosley did not see appellant and his confederate take the money out of the pocket of Burton, but he did see one of them holding a pistol against him, or right at him, while the other examined him for a weapon, and, finding he was not armed, went through his pockets and they immediately fled, Burton remarking immediately they had gotten $50 from him, whereupon, giving information to this effect, the officers followed appellant and engaged in an exchange of shots, in which one of the pursuing party was killed. Appellant shows he got $5, but claims he got it under other circumstances than those detailed by Mosley. That appellant got as much as $5 he admits, and so testifies, but claims he got it under circumstances different from those detailed by the witness Mosley. All the testimony shows and the defendant testifies that he immediately fled, and would not surrender to those who were following him, but that he continued his flight, as detailed in the testimony, until arrested in Little Rock. Under all the facts we are of opinion this evidence is sufficient to justify the jury finding the verdict rendered.

The judgment will therefore be affirmed.

On Rehearing.

At the last term of the court the judgment herein was affirmed. During vacation, and within the time allowed by law, motion for rehearing was filed, alleging error in the judgment of affirmance. The contention is that, under the facts introduced by the defendant, he was entitled to a charge that if the jury should believe his testimony, or there was a reasonable doubt of it, he was entitled to an acquittal as against the charge of robbery. It is unnecessary to restate the facts in this opinion, as they are fully stated in the original opinion relating to this phase of the record. The judgment evidently was affirmed on the theory that appellant’s contention related more to the sufficiency of the evidence, in view of what he had testified, than to the failure of the court to submit that issue. Upon a careful inspection of the motion for.new trial we have concluded that the judgment of affirmance was erroneous on account of the failure of the court, to instruct the jury that if they should believe defendant’s testimony, or had a reasonable doubt of it, they should acquit him of robbery. The writer of this opinion wrote the opinion affirming the judgment. If the testimony of appellant is to be credited, he did not commit the offense of robbery, and may not have been guilty of any offense. If, under the rules of the game they were playing, the banker had won the money, and it had passed into his hands under the rules of the game, and appellant had subsequently taken the money by force or violence, a case of robbery would be complete under the cases of Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368, and Carroll v. State, 42 Tex. Cr. R. 30, 57 S. W. 99. But under the facts stated by appellant he did not admit losing the money, but denied it, and claimed that he won the money at the time the banker in the game took the money and placed “it in the game,” as the witness called it. It has been held that, even where the money had been won under the rules of the game and taken possession of by the winning party, and the money was then grabbed or taken without any violence or the use of arms, it would not be robbery but theft. Johnson v. State, 35 Tex. Cr. R. 140, 32 S. W. 537. It is only where the money is taken by violence or by force of arms that robbery is constituted. Under the facts of this case we are of the opinion we were in error in affirming tlie judgment. Therefore tlie af-firmance is set aside, and the judgment is reversed and tlie cause is remanded.


author: PRENDERGAST, P. J.

text:
    ST. CLAIR v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct 15, 1913.
    Rehearing Denied Nov. 12, 1913.)
    1. Ceiminal Law (§ 1099) — Transcript — Unsigned Statement oe Facts.
    A statement of facts which has neither been signed nor filed in the trial court should not be copied in the transcript.
    [Ed. Note.—For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§§ 1092, 1099)—Appeal-Bill op Exceptions—Filing—Time.
    Unless the county court in misdemeanor cases allows 20 days or more after adjournment for filing bills of exceptions, neither bills of exceptions nor a statement of facts not filed during the term can be considered.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    3. Criminal Law (§ 1092)—Bills op Exceptions—Approval—Signing.
    It is the duty of accused on appealing from a conviction to follow up his bills of exceptions and have the judge approve and sign them and himself file them within the time prescribed by law, and he is not relieved from this duty by presenting them to the judge.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    L. H. St. Clair was convicted of aggravated assault, and appeals.
    Affirmed.
    P. J. Hemphill, of Dallas, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

From a conviction for an aggravated assault with the punishment fixed at a fine of $500 and 12 months in the county jail, appellant has appealed.

There is no statement of facts. The clerk has copied in the record what he has indexed as a statement of facts, hut he states that it was neither signed nor filed in the court below. He therefore should not have copied it in the transcript.

Since this cause was submitted the appellant’s attorney has filed an affidavit in which he shows that the case was tried on February 3, 1913, and the verdict and judgment then rendered; that on February 8th he filed his amended motion for new trial, which was on the same day overruled; that on February 10th he prepared a statement of facts, and on the same day delivered it to the county attorney, who represented the state, and requested him to sign and approve it; that on February 17th the county attorney returned to him this statement telling him he could not approve it and would himself prepare a statement and present it to af-fiant for his approval and then deliver it to the judge. There is no showing whatever that the appellant presented this statement or any other statement of facts to the judge for his action. He does show that at the same time he prepared the statement of facts and gave it to the state’s attorney that he prepared three bills of exceptions and turned them over to the judge, but he does not show that he ever at any time afterwards attempted to have the judge approve and file his bills of exceptions or did anything further thereabouts. There is copied in the record what are denominated three bills of exceptions. Two of them are not signed by the judge, but one is; they all show to have been filed on March 19, 1913.

The record shows that the court in which appellant was tried convened on January 6th and adjourned on March 1, 1913. The record does show that appellant did not even make a motion to have the court to allow 20 days after adjournment to file either bills of exceptions or statement of facts. Under our law, in county court misdemeanor cases, unless the court allows 20 or other number of days after adjournment for this purpose, neither bills of exceptions nor statements of facts can be considered, unless filed during term time. Hamilton v. State, 145 S. W. 349, and cases there cited. It is needless to cite other cases on this point.

The law further is that it is the duty of the appellant to follow up his bills of exceptions and have the judge to approve and sign them and himself file them within the time prescribed by law. Merely presenting them to the judge does not relieve him from this duty. Diggs v. State, 141 S. W. 100, and cases cited. Clearly the appellant makes no such showing as would entitle him to have a statement of facts or his case reversed because he did not get a statement of facts. The showing made shows that appellant himself, through his attorney alone, is responsible for not getting his statement of facts in this case. Douglas v. State, 62 Tex. Cr. R. 600, 138 S. W. 385; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268. A long list of cases so holding could be collated, but we deem it unnecessary. There is no question raised which can be considered in the absence of a statement of facts.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    McGILL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Assault and Battery (§ 96)—Prosecu-tion—Instruction.
    In a prosecution for aggravated' assault upon a female, where defendant claimed that she invited the fondling of her person, his theory should be presented to the jury.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]

      2. Witnesses (§ 337*) — Credibility— Conviction — Remoteness.
    In a prosecution for aggravated assault upon a woman, evidence of the fact that accused had been convicted of an assault with intent to rape some 23 years before is too remote to affect his credibility.
    [Ed. Note. — For other cases, spe Witnesses, Cent. Dig-. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    3. Criminal Daw (§ 1169*) — Review—Haemless Error.
    In a prosecution for aggravated assault upon a woman, where accused claimed that he acted with her consent, and there was evidence tending to show that fact, the improper admission of evidence of the fact that he had been convicted of an assault with intent to rape some 23 years previous is prejudicial.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Will McGill was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    R. S. Phillips, of Cleburne, for appellant. C. E. Dane, 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 prosecuted and convicted of an aggravated assault, and his punishment assessed at two years’ confinement in the county jail, and a fine of $500.

If the testimony of the prosecuting witness presents the correct state of case, the punishment assessed is none too severe. However, appellant and his witnesses present an entirely different state of facts, and he has a right to have his theory of the case, based on' adequate testimony, presented to the jury. He testified the girl phoned for him to come, and that she went with him willingly. In this he is supported by several witnesses.. He testified she exposed her legs and asked him “how he liked that.” He admits placing his hands on her, but he says she did not object, but by her acts and conduct invited the fondling of her person. He requested the court to instruct the jury: “At the request of counsel for the defendant you are further instructed that if you believe from the evidence that the prosecuting witness, Dora Nickell, invited the defendant to visit her, at the time of the alleged assault, and that the defendant went to see her in response to said invitation, and that said prosecuting witness by her conduct toward and with the defendant was calculated to lead him to believe, and he did believe, that his visits and attentions to her were agreeable to the said prosecuting witness, and that he did not intend to do her any injury in person or to her feelings, without her consent, and if you have a reasonable doubt as to such facts, you will find the defendant not guilty.” This aptly presented his contention, and should have been given.

By another bill it appears that while appellant was testifying in Ms own behalf, on cross-examination, the county attorney asked him, “Is it not a fact that you were convicted of an assault with intent to rape in Hamilton county?”, to which question appellant, by his counsel, objected on the ground that such evidence was immaterial and irrelevant, and was too remote, as shown by the bill. The objection was overruled, and appellant answer, “Yes.” The evidence further shows that the conviction took place 23 years before this trial. It was too remote, and it was error to admit the testimony. The court, in approving the bill, states that when the fact that it had occurred 23 years prior to this trial was brought out, no motion was made to exclude the testimony. While, if the proper objection was not made, of course, no reversible error would be presented, but after such hurtful and harmful testimony had been admitted, the more careful the court should have been to have seen that the defensive theory was fully and aptly presented to the jury. That appellant was once convicted of assault to rape, no matter how remote, would necessarily under the facts of this case, have considerable bearing. His conduct was morally reprehensible, even though he had the young lady’s consent, but he committed no legal crime, if she invited him to take the trip, voluntarily went with him into the woods, and exhibited her limbs to him, for he went no further, according to the testimony of both, than to fondle her person. He says it was with her consent, she says it was not, and she makes out a plain case of aggravated assault. But, whether with or without her consent, he shows that they were caught by neighbors, and would insist that this is the reason for the prosecution. On another trial the court will not permit the county attorney to ask appellant if he had been convicted of assault to rape in Hamilton county, for it is now known that it is too remote to be admissible, and even the asking of such question would be very hurtful in this character of case.

The other matters assigned need not be discussed, but on account of the above errors the case is reversed and remanded.


text:
    KEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    1. Disorderly House (§ 9*) — Ownership os Premises — Husband and Wife —Conviction of Husband.
    Sayles’ Ann. Civ. St. 1897, art. 2969, provides that all property of a wife, both real and personal, owned by her before marriage shall be her separate property, but during the marriage the husband shall have the sole management thereof. Meld, that where a husband and wife lived together on property belonging to her, and it did not appear that he iñ fact was not in control thereof, or that the wife had ever objected to his control, it was no defense to a prosecution of the husband for maintaining a disorderly house thereon that the title was in the wife.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 1; Dec. Dig. § 9.]
    2. Disobdebly House (§ 16) — Evidence — Reputation oe Inmates. ,
    In a prosecution for keeping a disorderly house, in which accused, his wife, and certain other women resided, evidence of the general reputation of such women, and that they had confessed and pleaded guilty to being prostitutes when arrested on that charge, and that accused had gone on their bonds in connection with such charge, was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    3. Disobdebly House (§ 16*) — Evidence — Conduct oe Inmates.
    In a prosecution for keeping a disorderly house, evidence of the conduct of the inmates was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    4. Cbiminal Law (§ 1169) — Appeal — Review — Pbejudice—Evidence.
    Where, in a prosecution for keeping a disorderly house, it was conclusively proven that one of the women residing there was defendant’s wife, he was not harmed by evidence of witnesses that she was supposed to be his wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 30S8, 3130, 3137-3143; Dec. Dig. § 1169.]
    5. Disobdebly House (§ 16) — Ownebshlp oe Property — Evidence.
    Where, in a prosecution for keeping a disorderly house, it was shown that defendant’s wife was the owner of the premises, the fact that records showed that accused had no interest in the property was immaterial.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.].
    6. Disobdebly House (§ 20) — Husband and Wiee — Operation by Husband — Instructions.
    Where, in a prosecution of a husband for keeping a disorderly house on property owned by his wife, there was no proof that the wife objected to his control of the property, or that he in fact was not in control thereof, the court did not err in refusing to charge that the husband was not bound to assume control of the separate property of his wife.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 31; Dec. Dig. § 20.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Pat Key was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted as the keeper of a disorderly house in Wichita Falls, Tex., and his punishment assessed at 20 days’ confinement in jail and a fine of $200.

It may be said that the wife of appellant was the owner of the property, under the evidence in this case, and that she owned it prior to her marriage to appellant He and his said wife lived on the premises, and the question is, Could he be convicted of keeping a disorderly house, when the proof showed that his wife owned the property? Article 2969, Sayles’ Rev. Stat., provides that all property of the wife, both real and personal, owned by her before the marriage, shall be the separate property of the wife, but during her marriage, the husband shall have the sole management of all such property. The husband, having the sole management of the property, even though it was the separate property of the wife, he would, in law, be held responsible for the character of business conducted in such house, and especially is this true when appellant and his wife lived in the house and made it their home.

But to take up each bill separately we may say that it was permissible to show that the wife of appellant was the owner of the property during the period covered by the information. And it was permissible to show the general reputation of those females who occupied the house with appellant and his wife, and that they had pleaded guilty to being common prostitutes, and appellant had gone on the bonds of such women when arrested, charged with being common prostitutes. It was also permissible to show how the house was conducted; that the female inmates sat in men’s laps, etc.

It was conclusively proven that May Key was the wife of appellant by his admissions and otherwise; therefore, no hurtful error was committed in permitting witnesses to state that she was “supposed to be his wife.”

Inasmuch as the record discloses that appellant’s wife was the owner of the premises and house, the fact that the records of the county clerk showed that appellant had no interest therein would be immaterial. If his wife owned the property, the law placed him in charge and control thereof, especially so when he and his wife lived in the house.

Ast to whether the inmates of the house were common prostitutes would be a legitimate inquiry, and the confessions of such inmates that they were common prostitutes would be admissible. As to whether appellant was aware of such facts would be a different question, but the record in this case discloses that appellant was fully aware of the character of women who lived in the house.

As the law puts appellant in control of the separate property of his wife, in the absence of any proof that he was not in control of same, and it further appearing that appellant and his wife lived on the property, there was no error in refusing the special charges requested by appellant “that the husband is not bound to assume control of the separate property of the wife.” If the record before us disclosed that appellant had not assumed control of the property, or that the wife had objected to him doing so, or that he, in fact, was not in control of the property, a different question would be presented, but in this case the evidence shows that appellant and his wife lived on the premises and in the house, and under such circumstances, even if it was the separate property of his wife, the law places him in control of the property; therefore there was no error in refusing the special charges requested, nor in the charge of the court in this respect.

The evidence amply supports the verdict, and the judgment is affirmed.


text:
    KEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Mae Key was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for keeping a disorderly house, and her punishment fixed as prescribed by law.

This is a companion case to that of Pat Key, 160 S. W. 354, this day decided. All of the questions raised and decided in the Pat Key Case are the same as in this. There are some questions raised and decided in that not decided in this. Under the circumstances there is no necessity of an extended opinion in this case.

The record clearly shows the guilt of appellant, and that no reversible error was committed. On the basis and opinion in the Pat Key Case, this case is affirmed.


text:
    SHOEMAKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 2, 1913.)
    1. Assault and Battery (§ 96) — Aggravated Assault — Insteuctions — Excessive Force.
    On a trial for aggravated assault with a pistol, where the evidence showed that accused was assaulted by W., a much larger man, that he ceased shooting as soon as W. ceased making the assault, and he testified that he fired only to stop the assault, and with no intention of shooting W., and that he would not have shot if W. had not been assaulting him, an instruction on excessive force should not have been given.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    2. Assault and Battery (§ 96) — Aggravated Assault — Instructions — Provoking Difficulty.
    On a trial for aggravated assault with a pistol, where the evidence showed that accused called' W. a thief, and that he shot W. in defending himself against an assault provoked by this epithet, the issue of provoking a difficulty was properly submitted.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    3. Assault and Battery (§ 96*) — Aggravated Assault — Instructions—Self-Defense.
    On a trial for aggravated assault, where accused claimed that he shot W., a much larger man, in defending himself against an assault, and the evidence was conflicting as to whether he had called W. a thief, or used language calculated to provoke a breach of the peace, the court should have charged on the issue of self-defense, on the theory that the jury might find that he did not use the language claimed.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.*]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    R. O. Shoemaker was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Critz & Woodward, of Coleman, for appellant. Woodward & Baker, of Coleman, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of an aggravated assault, and his punishment assessed at a fine of $25.

Appellant was chairman of the board of school trustees of the Voss school in Coleman county. A table was taken out of the schoolhouse one night and carried to a residence to play dominoes on. Chas. Wilson afterward moved to this house and used the table. When he left he carried the table with him. He testified that as he passed the blacksmith shop in Voss appellant called to him, but as he was driving a mare that would not stand he called back to appellant to come on down to the store. That appellant came to the store “and asked me about a table he said belonged to the school at Voss that he claimed I had taken with me to Fisher county when I moved, and one word brought on another, and he said to me that I had stolen the table, and when he said that, I struck him in the face .with my fist, and was in the act of striking him again when he shot me in the left arm with a pistol. The ball went in about six inches above the hand on the inside of my arm, and the doctor cut it out on the same side of my arm about five inches above where it went in. The pistol looked like a 32 caliber, anyhow it was a small pistol. * * * At the time I hit him I intended to either whip him or get whipped. I did not want to beat him up, but just give him a good whipping or get whipped. He shot me in the arm before I could hit him the second time. I was in the act of striking him again when he fired, my arm was in a striking position, shoved out directly towards him, and directly in front of him when he fired. He had made no effort to strike me at the time I first struck him, and I was not hitting him for anything he had done except what he said about the table; that is, about accusing me of stealing the table. Yes, I was mad, of course, when I struck him because he had said I had stolen the table. I am about 6 feet 1 inch tall and weigh about 160 pounds.”

Appellant testified: “I know the defendant, and knew him in January of 1912. I was at that time and am now the chairman of the board of trustees of that school district. On the day I had the difficulty with Wilson I had started to my farm and went by the shop to get some plowpoints to take with me. While I was> at the rear of the shop I saw the witness Wilson coming, and I called to him to stop a minute; I wanted to see him. He said he had a mare that would not stand, and for me to come on down to the store. When X got there I asked him if he had taken that little round table off with him, and he said, ‘Tes,’ and X said, ‘Well, Charley, that belongs to the schoolhouse, and we want it.’ He said, ‘By God, it is in Fisher county, and get it if you can.’ I said, ‘Now, Charley, you know that table did not belong to you when you took it off,’ and when I said that he struck me right here by the side of the left eye, and it hurt a little but did not knock me down, but it kinder stung and hurt. He was striking at me again, and I pulled my pistol out of my pocket and fired to one side of him, with no aim or purpose of hitting him, but to frighten him so that he would not strike me again. I did not shoot at him or to strike him. I merely wanted to stop him from assaulting me. I was afraid he would inflict a serious injury upon me, and that is why I fired the shot. I could have shot him a half dozen times if X had wanted to; no, five times, for it was a five-shooter. No one prevented me from shooting him again. I saw he was not going to strike me again, and I did not fire any more. I fired to protect myself from the danger I thought I was in, and did nothing more than I thought was necessary at the time.” Appellant was much smaller than Wilson, weighing only 135 pounds. Space Riddle corroborates appellant in his testimony.

Among other things the court charged on “excessive force” in three paragraphs of the charge, and we think, if a charge on that issue was called for, the court unduly emphasized thati theory of the case. Taking the record as a whole, we do not think a charge on excessive force was called for, and should not have been given, xippellant says he fired to stop .the assault Mr. Wilson, a much larger man, was making, with no intention of shooting him, and, apparently, if Mr. Wilson had not been striking at him the second time, he would not have shot him. It further appears that appellant voluntarily ceased shooting as soon as Wilson ceased making the assault on him. It appears from all the testimony that Wilson was the assaulting party, and appellant used the only meansi at his command to stop Wilson, and voluntarily ceased when Wilson ceased. Had he continued to shoot after Wilson had ceased his assault, then the doctrine of excessive force would have been in the case.

However, it was not error for the court to submit the issue of provoking the difficulty. If appellant went to see Wilson about the table, and, after conversing with him, called him a thief, as Wilson says he did, he must have known and appreciated the fact that this would provoke a difficulty, and Ms right of self-defense was impaired. Neither do we think the criticism of the charge on provoking the difficulty tenable. It fairly submitted that issue as raised by the testimony.

However, the court should have charged the jury on the issue of self-defense, as requested in appellant’s charge No. 11, if the jury should find under proper instructions that he did not call Wilson a thief, or use language calculated to provoke a breach of the peace. TMs was a contested issue; Wilson stating that appellant did use such language, while appellant equally as earnestly insists he did not do so.

The judgment is reversed, and the cause is remanded.


text:
    TURNER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Animals (§ 10)—Larceny (§ 45)—Evi-dence— Cattle Brand—Necessity of Recording.
    On a trial for cattle theft, evidence as to an unrecorded cattle brand was admissible on the question of identity, though prior to Acts 33d Leg. c. 69, amending Rev. Civ. St. 1911, art. 7160, such evidence was not admissible ,to prove ownership.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 8-12; Dee. Dig. § 10 ; Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. § 45.]
    2. Criminal Law (§ 673)—Admission of Evidence for Particular Purpose—Instructions.
    On a trial for cattle theft, where evidence as to an unrecorded cattle brand was admissible to establish identity, but not to prove ownership, but the court gave no instruction restricting the jury’s consideration thereof, it was error to refuse an instruction that such evidence should not be considered on the question of ownership.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    3. Animals (§ 10) — Evidence — Cattle Brands—Necessity of Recording.
    Under Rev. Civ. St. 1911, art. 7160, as amended by Acts 33d Leg. e. 69, providing that no brand on animals except such as are recorded shall be recognized in law as evidence of the ownership of the animals upon which it is used, but that this shall not apply in criminal cases, in a criminal ease evidence as to unrecorded brands is admissible to prove ownership as well as identity.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. § 10.]
    4. Larceny (§ 77*)—Instructions—Posses-sion of Recently Stolen Property.
    On a trial for cattle theft, where the testimony showed that soon after the theft the cattle were in accused’s possession and sold by him, that he and the purchaser were indicted, and that the purchaser called on him for an explanation of his possession, this being the first time and first occasion he had been so called upon to explain, and that he then explained that he had not stolen the cattle, but had a bill of sale and a check showing payment for them, a charge on the possession of recently stolen property was properly given, since to justify such charge it is not necessary that the explanation should go minutely into the details of accused’s alleged purchase of the stolen property.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.]
    5. Witnesses (§ 337) — Impeachment op Accused in Criminad Case — Previous Convictions.
    Where accused testifies he is subject to examination as any other witness, and can be compelled to testify to previous indictments or convictions for felony, if not too remote.
    TEd. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    6. Witnesses (§ 337*) — Impeachment oe Accused in Cbiminal Case — Previous Convictions.
    On a trial for cattle theft, where it appeared that accused explained his possession of the stolen cattle by stating that he purchased them and had a bill of sale and a check showing payment, and the bill of sale was in evidence, accused’s conviction for a felony and imprisonment for 18 months 18 years prior to the trial was too remote to justify proof thereof on his cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    7. Larceny (§ 47) — Evidence—Admissibility.
    On a trial for theft of cattle for which accused claimed to have a bill of sale, evidence that the general reputation for honesty of the notary before whom the bill of sale purported to have been acknowledged was a “little bad” should have been excluded.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 139; Dee. Dig. § 47.]
    Appeal from District Court, ¡Lubbock County; W. R. Spencer, Judge.
    J. B. Turner was convicted of theft, and he appeals.
    Reversed and rerqanded.
    Dalton & Russell, of Plainview, and W. F. Ramsey, of Austin, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases 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.

The appellant was indicted in some nine counts in the indictment The court submitted four of these to the jury for a finding — the fourth, which charged theft from W. S. Hall, the fifth, which charged theft from an unknown owner, the seventh, which charged the unlawful and fraudulent receiving of stolen property from some person to the grand jurors unknown, such unknown person having acquired the property under such terms as to be guilty of theft, and the eighth count, with receiving the stolen property from some one who had fraudulently, etc., taken the same from said Hall. There was a general verdict. The court in the judgment applied the verdict, in effect, to the fourth count. The contention of the state was that the alleged stolen cattle was the property of the Van Nattas, but that they were in the possession, control, etc., of said Hall, who was their manager.

By bills appellant complains that the court permitted the said Van Nattas and Hall to testify that the said Van Nattas ran as their brand the letter “V” on the left jaw and thigh, claiming that, as their brand was not recorded, such evidence was inadmissible to prove ownership. Under the previous uniform holding of this and the Supreme Court, when it had criminal jurisdiction, such testimony was not admissible to prove ownership, but it was admissible for the purpose of showing identity. The court correctly held the testimony admissible to establish identity of the alleged stolen animals, but he nowhere in his charge to the jury restricted the jury to the consideration of such testimony for the purpose of identity alone. The appellant requested, and the court refused to give, this charge; “You are instructed that on the question of ownership you will not consider the evidence of the brand of Van Natta brothers, as it was not shown to have been recorded.” This charge should have been given, and for the refusal of the court to give it this case must be reversed. Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654. It is needless to cite the many other cases to the same effect. However, we call attention to the fact that since the trial of this cause, by the act of March 31, 1913, p. 129, which went into effect on July 1, 1913, the Legislature of this state amended article 7160 of the Revised Civil Statutes, whereby it is provided in that article that no brand, except such as is recorded, shall be recognized in law as any evidence of ownership of cattle, etc., by providing “that this shall not apply in criminal cases.” So that hereafter the decisions of this court limiting the evidence of unrecorded brands to identity of a stolen animal shall not apply in criminal eases, but such evidence will be admissible for the purpose of establishing ownership as well. Dugat v. State, 148 S. W. 789.

In view of another trial, we will pass upon the other questions raised by appellant. The court gave a charge on the possession of recently stolen property, which has been expressly approved by this court (Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913, and. many other cases since then). It seems appellant does not contend that this is not a proper charge, if called for by the evidence, but his contention is that the evidence called for no charge on the subject. It is unnecessary for us to detail the evidence. The testimony does show that soon after the alleged theft of this property these cattle were shown to have been in appellant’s possession and sold by him; that he was at once indicted, and the party to whom he sold them was also indicted for receiving from him said alleged stolen property, and that very soon after, this purchaser called on Mm for an explanation of his possession, which was the first time and first occasion he had been so called upon to explain; that he then explained, in effect, that he had not stolen the cattle; that he had a bill of sale and a check showing payment for them. We are clear that this was such an explanation of his possession of tMs alleged stolen property as called" for the charge given by the court. It was unnecessary, in order to call for this charge, that he should go minutely into the question of from whom he bought the cattle, how much he paid for them, when, and all the other details. See the cases collated in White’s P. C. §§ 1518, 1510.

The appellant himself testified. In cross-examination by the defendant, over his objections, he was required to testify before the jury that about IS years before this trial he had been convicted for a felony and served an 18-month term in the penitentiary in the Indian Territory. This was objected to because it was too remote. Under our law, when an accused himself testifies, he is subject to examination and cross-examination as any other witness, and can be compelled to testify to any previous felony convictions or indictments for felony, provided they are not too remote or too long since. Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105. This court has never fixed any definite time —the shortest — where such testimony could be introduced. It depends upon the circumstances of the ease. Oates v. State, 149 S. W. 1196; Vielr v. State, 159 S. W. 56. In our opinion the conviction of appellant in the Indian Territory, as shown above, and his having served a term in the penitentiary therein, under the circumstances of this case, as developed by this trial, is too remote. Upon another trial, if objection is made, the testimony of that conviction should be excluded by the court.

Upon another trial the testimony of Lewis, to the effect that the general reputation of B. C. Campbell, the notary before whom the purported bill of sale purports to have been acknowledged, for honesty hei thought was a little bad, should not be admitted upon proper objections thereto.

There is nothing else raised necessary to be discussed. For the error above pointed out, the judgment is reversed and the cause remanded.


text:
    THOMASON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Law (§ 1090) — Appeal—Bill op Exceptions — Necessity.
    Where accused’s motion for a new trial presented certain questions by merely reciting the questions, and then stating in the ground of the motion that they would be more particularly shown- by Ms bill of exceptions, giving the number thereof, while as to many of the grounds there was no such bill in the record, they could not be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §
    2. Arson (§ 34) — Accomplice—Evidence.
    In a prosecution of accused as an accomplice to arson, evidence that on the night of the fire, when witness first discovered it, he could smell coal oil very strong, and could see that it had been used there, was admissible.
    [Ed. Note. — Por other cases, see Arson, Cent. Dig. §§ 59-69; Dec. Dig. § 34.]
    3. Criminal Law (§ 673) — Accomplice—Evidence Against Principal.
    In a prosecution of accused as an accomplice to arson, it was necessary for the state to establish the guilt, of the principal; and hence evidence showing the principal’s guilt which had no application to accused was properly received, without an instruction that it could not be considered against accused or for any other purpose than to show the principal’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.)
    4. Criminal Law (§ 448) — Evidence—Opinion.
    In a prosecution for accomplice to arson, a question calling for the opinion of a witness as to the origin of the fire when he first looked out and saw it was properly excluded as calling for a conclusion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.] .
    5. Criminal’Law (§ 829) — Trial—Request to Charge — Instructions Given.
    It is not error to refuse a request to charge substantially covered by instructions given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    6. Criminal Law (§ 858) — Trial—Instructions — Taking to Jury Room.
    That the jury inadvertently failed to take one of accused’s special charges, which had been approved and read to them, to the jury room when they retired was not reversible error.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    G. E. Thomason was convicted as an accomplice to arson, and he appeals.
    Affirmed.
    Brooks & Brooks, of Anson, and S. W. Bishop, of Gorman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

From a conviction for accomplice to arson, with a penalty of five years assessed, appellant has appealed.

Both the record proper and the statement of facts are very lengthy. We have carefully read and studied the whole, together with all of appellant’s attacks on the conviction. The state’s case depended wholly upon circumstantial evidence. The criminating facts and circumstances against appellant are many. After a careful consideration, we are of the opinion that the evidence is sufficient to sustain the conviction, and that we would not be authorized, under the law, to disturb the verdict and judgment of the lower court.

In appellant’s motion for new trial he attempts to present many questions, merely stating the question, and stating in the ground of the motion that they will be more particularly shown by his bill of exceptions, giving the number thereof. In many of these grounds there is no bill in the record as referred to. We take it that no such bill was taken and allowed, and, of course, no questions thus attempted to be raised can be considered.

Appellant, however, has a few bills of exceptions in the record. Not one of them is so drawn as to authorize or require this court properly to consider it. They are very meager, and as presented are insufficient to show any error. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1056, and authorities cited in these cases. The rules for preparing and presenting bills of exceptions have been so long and thoroughly established we deem it unnecessary to collate the cases or cite any number of them.

The substance of the first bill in the record, after reciting the style of the cause, and number thereof, and the court, and the formal part, “Be it remembered,” is: “While the witness Ben Bickers was on the stand testifying in behalf of the state, said witness was permitted to testify over the objection of this defendant as follows, to wit: ‘As to what evidence of coal oil I found around that fire, will say that I do not know that I found anything that morning; but that night when I first discovered the fire I could smell coal oil very strong, and in fact I could see that it had been used there. I did not know at the time that it was coal oil that had been used on the floor; but I believe it was, smelling it so strong at the time I first went up.’ ” Then follows appellant’s objections and the approval of the bill by the judge. Even if we could consider this bill, the evidence objected to was clearly admissible. Harris v. State, 62 Tex. Cr. R. 239, 137 S. W. 373; Powdrill v. State, 62 Tex. Cr. R. 445, 138 S. W. 114, and authorities cited in said cases.

At no time during the trial of the case did the appellant request any charge to the effect that the testimony 'of the various witnesses or any witness showing or tending to show the guilt of Paul Walker, the principal, could not be considered by the jury against appellant. More than a week after the trial, for the first time, appellant, in his amended motion for a new trial, complained that the court erred in permitting the testimony of certain witnesses to certain acts and conduct of the principal, Paul Walker, on the night of the fire, claiming that such testimony was not admissible as tending to show the guilt of said Walker, the principal. “And if admitted at all the jury should have been instructed that said testimony in no event could be considered against appellant, and if considered by them at all for any purpose could only be considered for showing the guilt or innocence of Paul Walker.” Even if this bill presented the matter in such way as that this court could consider the question, it presents no reversible error. This court, through Presiding Judge Hurt, in Armstrong v. State, 33 Tex. Cr. R. 421, 26 S. W., 829, on this subject, said: “Teague and Alexander are charged as principals, Armstrong as an accomplice to the robbery. The state must establish the guilt of the principal. This can be done by such facts as would be competent evidence against him if he were on trial. * * * Counsel for appellant requested the court to instruct the jury ‘that all acts and declarations of Alexander and Teague are in evidence only to show their guilt, and cannot be used to show the guilt of the defendant.’ Conspiracy apart, the instruction contains a sound rule of evidence. But let us suppose that the acts and declarations of Alexander or Teague were admissible against them, but not against appellant. Should the requested charge have been given? This depends upon another fact. If the acts and declarations of the principal, though admissible against him, and not admissible against the accomplice, tend to criminate the accomplice, such in--structions should be given. But, if they have no such tendency, such a charge is not required. Why? Because the jury could not use them for an improper purpose; they could be utilized only for the purpose of proving the guilt of the principal. ¡Looking carefully through the statement of facts, we find no act or declaration of either of the principals which tends to criminate the defendant.”

Clearly all such evidence attempted to be complained of was admissible to establish the guilt of the principal. As said by Judge Hurt in the Armstrong Case, so we say of this: “Looking carefully through the statement of facts, we find no act or declaration of the principal which tends to criminate the defendant.” Besides, as the matter is presented, the failure to charge as appellant complained was not calculated to injure appellant’s rights, and this court cannot reverse on that account. C. C. P. art. 743.

Even if appellant’s bill presented the matter in such a way that we could properly consider it, the court did not err in refusing to permit Dr. Shell to answer, when asked, “When you first looked out and saw the fire, what was your opinion at that time as to-the origin of said fire?” to which he would have answered that said building had been-struck by lightning.

The court in his main charge told the jury not to consider a certain remark in argument by the county attorney. This covered fully and in substance the special charge asked by the appellant on the same subject, and tlie court, therefore, committed no error in refusing to give appellant’s special charge.

Neither is any reversible error shown in the fact that in some way inadvertently the jury failed to take with them one of appellant’s special charges, which was approved by the judge and read to the jury. The record in no way discloses when appellant first discovered this. By the approval of the charge by the court and giving and reading it to the jury, the appellant got the full benefit thereof.

In the case of Gray v. State, 144 S. W. 284, and eases therein cited, the statute and rules showing the requisites which would authorize the court to grant a new trial because of newly discovered evidence are fully stated and discussed. It is unnecessary to again discuss them here. Appellant’s motion for new trial on this ground clearly does not comply with the law and rules so as to show any error of the court in refusing to grant a new trial on that ground. Besides this, the court on the hearing of the motion for new trial on this ground heard considerable evidence, taking 32 pages of typewritten matter to show it in the record, and upon consideration thereof the ruling of the court' presents no error.

We have taken up and discussed all of the questions presented by appellant in his brief. They present the only material questions necessary to be discussed or decided. We have considered all of the other questions attempted to be raised by appellant, and none of them show any error.

The judgment is therefore affirmed.


author: PRENDBRGAST, P. J.

text:
    MORENO v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Law (§ 351) — Illegal Sale-Evidence — Inculpatory Circumstances.
    In a prosecution for illegal sale of intoxicants, that accused resisted arrest, drew a dirk, and cut the officers who were arresting her, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]
    2. Indictment and Information (§ 196)— Waive» of Defects — Names—Mistake.
    Code Or. Proc. 1911, arts. 560, 561, provide that, if the defendant suggests that he bears a name different from that stated in the indictment, the indictment shall be corrected, etc., and the cause proceed, and, if he alleges that he is not indicted by his true name and refuses to say what his true name is, the cause shall proceed as if the name stated were true. Held that, the' court, on being informed that accused was not indicted by her right name, having ruled that she would be prosecuted under the name she desired, but her attorney declined to make any motion or request to change the record, she could not thereafter claim error in that she was indicted under the wrong name.
    [Ed. Note. — Eor other eases, see Indictment and Information, Cent. Dig. §§ 628-635; Dec. Dig. § 196.]
    3.Intoxicating Liquors (§ 141) — Wrongful Sale — Nature of Offense.
    Where accused made many sales of liquor in connection with the operation of a restaurant, she was properly prosecuted for pursuing the business or occupation of selling intoxicating liquor instead of for making several single sales of liquor; the state being required to show that she made at least as many as two specific sales in order to establish that she was pursuing the business of illegally selling liquor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.]
    4. Intoxicating Liquors (§ 141*) — Wrongful Sale — Business ok Occupation.
    Where accused was prosecuted for engaging in or pursuing the business or occupation of wrongfully selling intoxicating liquor, it was not necessary that the state establish that she was engaged in that business as her principal or exclusive occupation.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141.]
    5. Criminal Law (§ 918) — Appeal—Bill of Exceptions.
    An objection that an interpreter was not sworn according to law could only be raised by a bill of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2163-2192, 2195, 2196, 2219-2224; Dec. Dig. § 918.]
    Appeal from District Court, Medina County ; R. H. Burney, Judge.
    Longoria Moreno was convicted of pursuing the business of selling intoxicating liquors in prohibition territory, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDBRGAST, P. J.

The appellant was indicted and convicted for pursuing the business or occupation of selling intoxicating liquors in prohibition territory. The penalty was fixed at two years in the penitentiary— the lowest prescribed by law.

The evidence by the . state is clear and ample, showing her guilt. In addition to showing the specific sales alleged in the in'dictment, it showed a large number of other sales about the same time and that she kept whisky in considerable quantities, not only at her restaurant, but at her residence. At the very time she was arrested in this case, a search of her restaurant was made, and many bottles of whisky, concealed in various places about the restaurant, were found.

The indictment follows the statute and has uniformly been held sufficient by this court. Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and a large number of cases decided since then. The court therefore did not err in overruling her motion in arrest of judgment, claiming the indictment was insufficient.

The testimony by the state, showing that she resisted arrest at the time she was arrested for this offense, drew a dirk, and cut the officers who were arresting her, was clearly admissible. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124. And the court correctly declined to give appellant’s special charge that such evidence should not he considered by the jury.

She also requested charges to find her not guilty because her name was different from the name under which she was indicted. The court, in allowing appellant’s bills to his refusal to give such charges, explained that when the question was raised he informed defendant’s counsel that, if he or the defendant herself desired the indictment and the record changed so that she could be tried or prosecuted under the name she desired, he would have the correction or the change made as she wished. The appellant’s attorney replied that he did not and was not making any such motion or request. Our statute (articles 560, 561, C. C. P.) prescribes that if the defendant, or his counsel, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself, the style of the cause changed so to give his true name, and the cause proceed as if the true name had been first recited in' the indictment. And if he alleges that he is not' indicted by his true name and refuses to say what his real name is, the cause shall proceed as if the name stated in the indictment were true, and the defendant shall not be allowed to contradict the same by way of defense. There was no question as to appellant’s identity—that she was the party in-dieted. So that the court’s refusal to charge an acquittal on the ground stated was correct.

The appellant’s contention that she should' have been prosecuted for making the several single sales of intoxicating liquor, and could not be prosecuted for pursuing the business or occupation, is not the law and has repeatedly and uniformly been so held by this court. By the testimony, under the law, she was clearly shown to have engaged in and pursued the occupation or business of selling intoxicating liquors in violation of the prohibition law, which was in force where the sales were shown to have been made. It was a prerequisite to her conviction for this offense that the state allege and prove, which it did, that she made at least as many as two specific sales as required by the statute.

The court should have refused, as he did, to give appellant’s special charge, defining what the statute means by “engaging in or pursuing the business or occupation” of selling intoxicating liquors, to the effect that she must be engaged in that business as her principal business or in some way as a business proposition, etc. The court, in his main charge, had told the jury that the said terms meant that the party charged actually engaged in the business of selling liquor as a trade' or vocation and for a livelihood, but that it was not necessary for the state to establish that the defendant followed such a business or occupation as her principal or exclusive business. Then, in addition, gave one of appellant’s special charges on this subject to the effect that what is meant by said term is the calling, trade, vocation, or business which one engages in to procure a living, or obtain wealth. Even these charges were more liberal to the appellant than was authorized by said statute, as has repeatedly been held by this court. Creech v. State, 158 S. W. 282, and cases there cited.

Appellant by his motion for new trial attempts to raise the question that the interpreter. for the witnesses was not sworn according to- law. This question could only be raised by bill of exception. However, the order of the court in this case on that subject specifically shows that the interpreter was sworn as required by law.

He also claims, by his motion for new trial, that the state failed to prove that the alleged sales were made in commissioners’ precinct No. 4, Medina county, in the state of Texas. The testimony of each witness who testified on the subject—and there were several— shows that appellant made the specific sales of intoxicating liquor in the town of Devine, and that she lived there, and that her restaurant and residence were in Devine. The city marshal .of Devine testified pointedly that Devine was in Medina county and in commissioners’ precinct No. 4 of said county. The appellant expressly admitted that the sale of intoxicating liquor was prohibited under the law in said commissioners’ precinct, and that all the orders with reference to the matter and the allegations in the indictment with reference to that matter are true, and that said law was in force at the time this offense is alleged to have occurred. The indictment makes all the necessary and proper allegations as to the order of the commissioners’ court ordering such election for said'precinct; that it was held, prohibition carried, proper notice and publication thereof made, and the order of said court in terms of law prohibiting the sale of intoxicating liquors in said precinct.

No error whatever is shown in this case. The judgment is affirmed.