source: Caselaw Access Project

author: PRENDERGAST, P. J. DAVIDSON, J.

license: Public Domain

text:
    STATE ex rel. SPENCER, Co. Atty., et al., v. NABERS, District Judge, et al.
    (No. 4128.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Prohibition by the State, on the relation of P. M. Spencer, County Attorney, and another, against J. A. Nabers, District Judge, in the case of Will Fullingim against B. F. Walker and F. M. Spencer.
    Ordered that the writ issue as prayed.
    C. C. McDonald, Asst. Atty. Gen., for the State. D. E. Decker, of Quanah, for respondent.
   PRENDERGAST, P. J.

This cause is on all fours with No. 3721, State of Texas ex rel. John B. McNamara, County Attorney, v. Erwin J. Clark, District Judge, et al., 187 S. W. 760, from McLennan county, which was fully discussed and decided by this court on December 15, 1915, in an opinion rendered and judgment entered on that date.

It is entirely unnecessary to herein again discuss the question. Among other things, it is conclusively shown in this cause that Will Ful-lingim, the party at whose instance J. A. Na-bers, judge of the Forty-Sixth judicial district of Texas, including Hardeman county, granted a writ of injunction against B. F. Walker, sheriff of Hardeman county, Tex., and F. M. Spencer, county attorney of said county, has, and had, no vested property right whatever, and had none at the time he applied for and obtained from said judge a writ of injunction against said sheriff and county attorney; and that the said district judge had no power, authority, or jurisdiction to grant said order of injunction; and that his pretended order therein to that effect is a nullity and absolutely void; and that he had, and has, no authority, power, or jurisdiction whatever to attempt to enforce the same against the said Walker, sheriff, and Spencer, county attorney. Said sheriff and county attorney be, and they are hereby, released and relieved from any and all restraint sought to be placed upon them, or either of them, in the performance of their official duties by virtue of said void order and pretended writ of injunction.

It is therefore the order of this court that the clerk of this court at once issue a writ of prohibition directed to said J. A. Nabers, judge as aforesaid, requiring that he desist from any further interference whatever with or hindrance of said sheriff and county attorney, or either of them, or the successors of them, or either of them, from instituting and prosecuting any and all criminal proceedings they, or either of them, deem it necessary or proper as such officers under their official oaths against said Will Fulling-im for the violation, or alleged violation, of the pool hall law of this state. And the clerk of this court is further directed and required to at once issue to said' Will Fullingim and his attorney, D. E. Decker, a writ, prohibiting them, and each of them, from taking any further action or proceeding whatever in cause No. 1246 on the docket of the district court of said Hardeman county, Tex., wherein said Will Ful-lingim, acting by and through his said attorney, filed in said district court against said sheriff and county attorney and obtained an order of injunction and writ thereunder, prohibiting said sheriff and county attorney from proceeding to prosecute the said Will Fullingim for a violation, or an alleged violation, of said pool hall law, as they, the said sheriff and said county attoi-noy, their successors, 'or the successor of either of them, may deem it their duty as officials to so prosecute.

It is hereby further ordered that any and all other writs necessary or proper to enforce this judgment are ordered to be issued by the clerk of this court.

DAVIDSON, J.

(dissenting). For reasons stated in my dissenting opinion in State ex rel. McNamara v. Clark, 187 S. W. 760, decided at present term, I enter my dissent in this case.


author: PRENDERGAST, P. J.

text:
    STATE ex rel. SPENCER, Co. Atty., et al., v. NABERS, District Judge, et al.
    (No. 4129.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Prohibition by the State, on the relation of F. M. Spencer, County Attorney, and another, against J. A. Nabers, District Judge, in the case of Dave Barnes against B. F. Walker and F. M. Spencer.
    Ordered that the writ issue as prayed.
    C. C. McDonald, Asst. Atty. Gen., for the State. D. E. Decker, of Quanah, for respondents.
   PRENDERGAST, P. J.

This cause is on all fours with No. 3721, State of Texas ex rel. John B. McNamara, County Attorney, v. Erwin J. Clark, District Judge, et al., 187 S. W. 760, from McLennan county, which was fully discussed and decided by this court on December 15, 1915, in an opinion rendered and judgment entered on that date.

It is entirely unnecessary to herein again discuss the question. Among other things, it is conclusively shown in this cause that Dave Barnes, the party at whose instance J. A. Nabers, judge of the Forty-Sixth judicial district of Texas, including Hardeman county, granted a writ of injunction against B. F. Walker, sheriff of Hardeman county, Tex., and F. M. Spencer, county attorney of said county, has, and had, no vested property right whatever, and had none at the time he applied for and obtained from said judge a writ of injunction against said sheriff and county attorney; and that the said district judge had no power, authority, or jurisdiction to grant said order of injunction; and that his protended order therein to that effect is a nullity and absolutely void; and that he had, and has, no authority, power, or jurisdiction whatever to attempt to enforce the same against the said Walker, sheriff, and Spencer, county attorney. Said sheriff and county attorney be, and they are hereby, released and relieved from any and all restraint sought to be placed upon them, or either of them, in the performance of their official duties by virtue of said void order and pretended writ of injunction.

It is therefore the order of this court that the clerk of this court at once issue a writ of prohibition, directed to said J. A. Nabers, judge as aforesaid, requiring that he desist from any further interference whatever with or hindrance of said sheriff and county attorney, or either of them, or the successors of them, or either of them, from instituting and prosecuting any and all criminal proceedings they, or either of them, deem it necessary or proper as such officers under their official oaths against said Dave Barnes for the violation, or alleged violation, of the pool hall law of this state. And the clerk of this court is further directed and required to at once issue to said Dave Barnes and his attorney, D. E. Decker, a writ, prohibiting them, and each of them, from taking any further action or proceeding whatever in cause No. 1247 on the docket of the district court of said Hardeman county, Tex., wherein said Dave Barnes, acting by and through his said attorney, filed in said district court against said sheriff and county attorney and obtained an order of injunction and writ thereunder, prohibiting said sheriff and county attorney from proceeding to prosecute the said Dave Barnes for a violation, or an alleged violation, of said pool hall law, as they, the said sheriff and said county attorney, their successors, or the successor of either of them, may deem it their duty as officials to so prosecute.

It is hereby further ordered that any. and all other writs necessary or proper to enforce this judgment are ordered to be issued by the clerk of this court.

DAVIDSON, J., dissents.


text:
    HOLLAND v. STATE.
    (No. 4102.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    On Motion for Rehearing, June 21, 1916.
    Dissenting Opinion July 3, 1916.)
    1. Oeiminal Law <§=3982 — Suspension oe Sentence — Burden oe Prooe oe Prisoner’s Reputation.
    Under Vernon’s Ann. Code Or. Proc. 1916, arts. 865b, 865e, providing that in no case shall sentence be suspended except when the proof shall show and the jury shall find that the defendant has never before been convicted of a felony, the burden of proving that accused has never been convicted of a felony is upon accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    2. Criminal Law <&wkey;982 — Suspended Sen-’ tence — Evidence.
    When accused properly pleads for suspended sentence, the state may introduce testimony as to the general bad reputation of accused, and also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of accused, so that the jury, from all the testimony, even if accused has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of sentence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    3. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    Upon application for suspended sentence, purely hearsay testimony, as distinguished from general reputation or specific acts of accused within the knowledge of the witness, is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <§=> 982.]
    4. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    The court should be liberal in allowing testimony by the state upon question of accused's reputation, habits, and commission of previous felony, and such proof may be introduced at the time of proving the offense itself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. c&wkey; 982.]
    5. Criminal Law &wkey;>982 — Suspended Sentence-Evidence.
    Upon application by accused for suspended sentence if when the state offers proof of his habits, reputation, etc., he withdraws his application, the court should permit no such proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. &wkey; 982.]
    6. Criminal Law <&wkey;982 — Suspended Sentence-Evidence.
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 805b, 865c, upon application for suspended sentence, where accused fails to prove that he has never been convicted of a felony, the jury may not pass on the question of recommending a suspended sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <S&wkey; 982.]
    On Motion for Rehearing.
    7. Criminal Law <&wkey;1169(l) — Appeal and Error — Hearsay Testimony.
    , On application for suspended sentence in burglary trial, where evidence of guilt was clear and accused offered no testimony as to good reputation or not having been convicted of felony, and the jury assessed the lowest punishment, the admission of hearsay testimony as to accused’s photograph being in a rogues’ gallery was harmless error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. <&wkey;>1169(l).]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Herschall Holland was convicted of burglary, and appeals.
    Affirmed.
    H. Reed Williams, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and assessed the lowest punishment. The evidence was amply sufficient to sustain the verdict. We see no necessity of reciting it.

Appellant, on the eve of the trial, filed his sworn plea, seeking a suspension of his sentence in case he was convicted. When this is the case, the statute enacts (article 865c, Vernon’s C. C. P.) that:

“The court shall permit testimony * * * as to the general reputation of defendant to enable the jury to determine whether to recommend a suspension of sentence, and as to whether the defendant has ever before been convicted of a felony.”

The statute also enacts (article 865b):

“That in no case shall sentence be suspended except when the proof shall show, and the jury shall find in their verdict that the defendant has never before been convicted of a felony i'n this state or any other state.”

We have repeatedly construed these statutes in our previous decisions. It is unnecessary to collate them here. In the particular méntioned, we think the statute means what it says and says what it means; that is, that it is incumbent upon an accused himself when he pleads for a suspended sentence to prove that he has never before been convicted of a felony in this or any other state. Under the statute, no presumption is indulged in his favor that he has not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the issue of suspended sentence to the jury for a finding at all, and that was the case in this instance.

Whenever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says that the court shall permit testimony as to the general reputation of the accused, to enable the jury to determine whether or not to recommend a suspension of the sentence. We think this is clear, and means what it says. And, taking the whole statute and the object and purpose of it, we have held, and still hold, that not only can the state introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury, from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying.

Practically in all records coming before this court where an accused has pleaded for a suspended sentence, such plea, as in this instance, is filed on the very eve of the trial. The state cannot, and does not, know that the accused will file such plea, and is therefore frequently ill prepared, if prepared at all, to offer proof on such plea to disprove it. Hence it is more necessary, in order to reach the real intent of the law, that the court shall be liberal to the state in admitting testimony on this issue. The state is not bound to wait until after an accused himself offers proof that he has committed no felony and of his good reputation, habits, etc., but may introduce such proof at the time of proving the offense itself. However, of course, if when the state offers such proof the accused should then withdraw his plea for a suspended sentence, the court should permit no proof on the subject.

Appellant has some bills of exceptions to the introduction by the state - of some testimony along this line. They are qualified in a very lengthy statement by the trial judge. We think it unnecessary to recite this here, and we think it unnecessary to discuss the said suspended sentence law in a general way other than we have done, but think it necessary only to discuss it to the extent to decide the questions raised herein. We think the testimony in this case, without contradiction, affirmatively shows that appellant’s general reputation as a peaceable and law-abiding man, and in some particulars also, was bad, and he offered no proof to show that he had never before been convicted of a felony. Hence it was proper, as the court did, to refuse to submit that issue to the jury for a finding. Even if the court on that issue admitted pure hearsay testimony, it became harmless, in the light of all the testimony and the fact that the jury assessed the lowest punishment.

The court correctly answered the inquiry of the jury when he told them that, under the circumstances, they had no right to pass on the question of recommending a suspended sentence.

There is no reversible error shown by this record.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant again urges that it was reversible error for the court to permit the question and answer by the state of the witness Harry Kendall, as follows:

“Q. I will ask you if you don’t know it to be a fact that his mug appears in the detectives’' office up here, whore they mug desperate characters, and that his mug is in other places that you know of? A. I heard Mr. Do Witt say in 'there awhile ago that he was mugged, but I could not say that I know he was mugged”

—claiming that this was hearsay.

We considered this question fully at the time the opinion was prepared and handed down, and held the court should not permit hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying, and, further, that even if the court on the issue of suspended sentence admitted pure hearsay testimony, it became harmless, in the light of all the testimony and the fact tnat the jury assessed the lowest punishment. All of appellant’s bills are along the same line. We then thought it unnecessary to take up this particular question and discuss it alone, as it was embraced within the discussion of all of them together. Neither did we then make any statement of the testimony. We will now do so.

Appellant pleaded for a suspended sentence. He neither testified himself, nor offered any witness or other testimony in his behalf. This testimony objected to, as the record clearly shows, was offered solely to let the jury determine whether or not it would suspend his sentence. It was not offered nor admitted for any other purpose.

The uncontradicted testimony by the state showed that “just prior, two or three days before,” February 5, 1916, Sammy Williams called the witness Harry Kendall into Graves’ tailoring shop in Dallas, and Kendall swore:

“At that time I had a conversation with Hershall Holland and Sammy Williams, * * * and Sammy Williams said that they were going to ‘make’ the Crowdus Drug Company, and that he would have some dope on hand, and asked me if I could dispose of it in any way. * * * I told them this: That if they made the joint, it could be very easily disposed of, and that they could get a good price for it.”

Mr. Mitchell, the manager of the Crowdus Drug Company, swore: That the drug company’s house was burglarized on the night of February 5, 1916. The store building was five stories and a basement. That the entry was made up the fire escape and by raising a window. They broke an iron bar, and the window was locked on the inside with a padlock. This padlock they also prized open. That the narcotics of the company were kept on the third floor, in a room partitioned off and locked to itself. That they used the same instrument that they entered the building with to open that padlock to the room where they kept these narcotics. That in addition to opening the window, they had to break two locks, that on the inside of the window and the door to where those nar-coties were kept, so as to reach them. That they stole 130 bottles of morphine, 16% ounces, worth at wholesale $7.60 an ounce, and 11 bottles of cocaine, containing a half ounce each, and 1 bottle containing 1 ounce, all together worth $156 at wholesale. That the drug company recovered 93 bottles only of the stolen morphine and none of the cocaine.

Lane Wilson testified: That a little after midnight on the night of February 5, 1916, Sammy Williams phoned him and procured from him his automobile. That that night about 1:30 said Williams and appellant together came to his house in said ear. That he went out to where they were, and found them with over a hundred bottles of morphine — he counted over a hundred. He got in the car with them, and they went down to his room in his mother’s house and carried the stuff into his room. He swore:

“I bought 50 bottles from Horshall Holland and paid him $125 for it. I paid that money to I-Tershall Holland.”

He further swore that the three then went to Harry Kendall’s residence. Harry Kendall and his wife swore that they came there that night together. Kendall swore that on that occasion Hershall Holland or Sammy Williams—

“one or the other, while they were both present there said, ‘We made the Crowdus Drug Company; that we climbed up the fire escape and jimmied the lock.’ ”

That they left 4 bottles of the morphine there with him, intended as a gift to him. They tried to get him to go with them to Et. Worth to sell the “dope,” but he advised against this. It seems that Lane Wilson was arrested for having said part of said morphine in his possession. While in jail, he told Burford Jetty to get this “dope” and take it away from his house, which J^tty did. The officers caught onto this, and recovered that much of the morphine from Jetty, which was identified as stolen from the drug company and returned to it.

From this uncontradicted testimony, no one can doubt the guilt of appellant. It establishes his guilt beyond a doubt. With this clear guilt of appellant established, the state sought to prevent the jury from suspending his sentence, and on the question of suspended sentence solely introduced the testimony above objected to. The state sought to prove by said witness Harry Kendall that appellant’s general reputation was bad as a peaceable, law-abiding citizen and honest man, hut he said he could not say whether his reputation was good or bad, “but he had got a pretty rough name to be a kind of fighter, and that is all”; that he could not say he is an honest man, hut he was honest with his fellow citizens — with the boys that he dealt with. On recross-examination by the appellant, he swore:

“He has got a bad reputation for fighting; he gets drunk and shoots and things like that.”

Mr. De Witt, the detective, swore he knew appellant’s general reputation for being a peaceable, honest, law-abiding citizen, and that it was bad. This, together with the objected to testimony, was all the testimony on this subject.

The admission, over appellant’s objection, of what the witness swore Mr. De Witt had told him, was error, but, as shown, the witness as a part of his answer expressly stated, “But I could not say that I know he was mugged.” As stated, the jury assessed the lowest punishment, and we think that the admission of this testimony, under the circumstances of this case, does not present reversible error. Judge Hurt, in Post v. State, 10 Tex. App. 594, said:

“If this court must reverse for every irregularity, though objected to, whether it tended to injure defendant or not, it would be almost impossible in a great many cases to legally convict. The action of the court in this matter was wrong, but, no injury appearing therefrom, we cannot make it a ground for reversal.”

To the same effect is Bond v. State, 20 Tex. App. 438; Saddler v. State, 20 Tex. App. 196; King v. State, 42 Tex. Cr. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792; Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347. A great many other cases to the same effect could be collated, but we think it unnecessary.

The motion is overruled.

DAVIDSON, J.

(dissenting). When the original opinion was announced, I did not theff enter my dissent. When the court overruled the motion for rehearing, I noted my disagreement. I cannot agree with some statements and conclusions found in the opinion of the majority, so I shall follow the record in such quotations as I think necessary.

Bill of exceptions No. 1, as contained in the record, is as follows:

“Be it remembered that upon the trial of the above entitled and numbered cause, while Henry Kendall, a witness for the state, was in the witness stand in behalf of the state, the state introduced the following testimony, to wit: ‘Q. I will ask you if you don’t know it to be a fact that Ms mug (meaning defendant’s picture) appears in the detective’s office (meaning rogues’ gallery) up here, where they mug desperate characters, and that his mug is in other places that you know of? I want you to tell me whether or not you have heard that? A. I heard Mr. De Witt say in there awhile ago that he was mugged.”

This is the testimony to which many objections were urged. These objections were all overruled, and the testimony went before the jury. In the original opinion the majority of the court held that, inasmuch as appellant had filed his plea for suspended sentence :

“It is incumbent upon an accused himself, when he pleads for a suspended sentence, to prove that he had never before been convicted of a felony in this or any other state. Under the statute, no presumption is indulged in his favor that he had not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the' issue of suspended sentence to the jury for a finding at all, and that was the case in this instance. Whenever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says that the court shall permit testimony as to the general reputation, of the accused to enable the jury to determine whether or not to recommend a suspension of the sentence. We think this is clear and means what it says. And taking' the whole statute and the object and purposes of it, we have held, and still hold, that not only can the state introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crime, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying.”

This quotation lays down two propositions: First, that it is incumbent upon the defendant, when he files his plea for suspended sentence, to prove it. If he does not prove it, it is not an issue in the case, and the court should not submit the matter to the jury. Other decisions have so held. The second proposition is that purely hearsay testimony shall not be admitted on this issue, and yet this judgment is affirmed when the defendant introduces no testimony on his plea of suspended sentence. If the defendant does not file his plea for a suspension of the sentence, it cannot be an issue in the ease, and no testimony should be admitted bearing upon his reputation. Defendant alone can put his reputation at issue under the suspended sentence act. The state cannot do it. If he files his plea and offers no testimony, it is not an issue before the jury, because he does not tender any evidence on that question. Special matters to become issues in a case when authorized must be supported as to burden of proof by the party tendering such issues. Inasmuch as appellant did not offer any testimony in regard to this plea, the court was not authorized to submit the issue to the jury. This court, as well as the trial court, recognized that as the law, and the trial court refused to so charge the jury on the matter, and at their request expressly told them they could not consider it, and yet this hearsay testimony was permitted to go before the jury and remain before them. That it is purely hearsay is not the subject of debate. The witness Kendall, answering the question as to whether he had ever heard that appellant’s picture was in the rogues’ gallery, stated that he had heard Mr. De Witt say so awhile ago. It was not even attempted to be shown that his picture was in the rogues’ gallery, but this witness was permitted to state that he had heard Mr. De Witt say so. This is hearsay evidence of the veriest type. It could not be introduced either upon the plea of suspended sentence, if testimony had been offered in support of that plea, much less .could it be introduced in evidence to affect the defendant’s standing and reputation. I feel justified in making the statement that no opinion has been .written that would hold this character of testimony admissible otherwise than as the merest hearsay. In the opinion on rehearing the majority opinion does not fully copy the matter as set forth in bill of exceptions, but refers to the original opinion, in which it was held that the court should not permit purely hearsay testimony as contradistin-guished from general reputation or specific acts within the knowledge of the witness testifying, and, further, even if the court on the issue of suspended sentence admitted hearsay testimony, it became harmless in the light of all the testimony and the fact that the jury assessed the lowest punishment. The opinion on rehearing concedes the error, but puts the affirmance on the ground that it was harmless, especially so because appellant received the lowest punishment. Appellant was on trial for burglary, which is a serious felony in its nature and punishment under the Penal Code. To be convicted of this offense is a serious matter to the defendant, whether he be justly or unjustly convicted. If the conviction should be proper, under the facts and law it renders a man infamous, bars , him of all rights and privileges as a citizen of Texas; he cannot vote, testify, and do other things that the citizen unconvicted of a felony can do. It is necessarily of serious moment to him whether he be guilty or innocent. If he be innocent or if he be convicted when he should not be, there are other serious matters added to what has been stated where a just and legal conviction is obtained. He is made to suffer punishment in addition to the infamy engendered by reason of the conviction which he ought not to endure.

In Texas we have at least two leading propositions with reference to the trial of criminal cases: First, the legitimate facts must show guilt; second, only legitimate facts and legitimate methods shall be indulged to obtain the conviction. He may be guilty but if methods and means are resorted to, to obtain a conviction not authorized or justified by the law, the law has been prostituted beyond its purpose and beyond the authority invested in the court by legislative enactment. We do not legally convict men in Texas on illegitimate testimony or for offenses not denounced by the statute. All crimes in Texas are statutory. In fact, there can be no violation of law in Texas unless the Legislature has defined the offense before the man is tried or commits the act for which he is being tried. Recognizing this to some extent at least, the majority of this court in the instant case held that, inasmuch as appellant received the lowest punishment, therefore this illegal testimony was harmless error. As before stated, this testimony was not admissible on the plea of suspended sentence. The issue was not before the jury. Defendant offered no testimony, and the court expressly so instructed the jury, and this court in the majority opinion says the trial court was correct. Now we have the testimony set out in a bill of exceptions, or rather the statement of the witness recorded in the bill, which is purely hearsay, and the court says that the statement of the witness, although hearsay, was harmless. I do not understand how this statement of the majority opinion can be justified. The law presumes the defendant innocent until his guilt is established by legal testimony to the exclusion of the reasonable doubt. Here is a case where the guilt is not conceded. The defendant is fighting for his liberty. The burden is on the state to prove his guilt beyond a reasonable doubt to the exclusion of the presumption of innocence. The state is permitted to prove by the witness Kendall that a man named De Witt told him that defendant’s picture was in the rogues’ gallery, which, of course, means that he belongs to the confirmed criminal class. What becomes of the presumption of innocence? If the rogues’ gallery does not mean he is a confirmed criminal, then the writer does not understand what it does mean. When a picture of a man is placed in the rogues’ gallery, it publishes that he is a criminal. The fac-t that the picture was in the gallery was not even proved by the witness, but he stated that Mr. De Witt told him it was there. Now we have a case sharply presented that the defendant is not legally guilty. The law says he is presumed innocent until his guilt is established by legal testimony beyond a reasonable doubt. The state is permitted to introduce testimony of the witness Kendall that Mr. De Witt told him the defendant was such a confirmed criminal that they had placed his picture in the rogues’ gallery. If this is not damaging, the writer does not understand what sort of testimony or what sort of illegitimate evidence would be damaging, but the “antinomian cloak” of “harmless error” is thrown over the transaction, and the defendant, in the face of this record, must serve a term in the penitentiary. There may be cases of harmless error, but in a ease like this it ceases to be harmless error.

There are two rules the writer has always understood to be fundamental with reference to this question, and to which the doctrine of harmless error cannot apply: First, if the ruling of the court is error, or if the introduction of the evidence would probably lead to or assist the state in getting a conviction when the guilt was in doubt, or the jury may or could take the opposite view and acquit, then the error cannot be harmless. But for this ruling of the court the jury may have taken a different view and acquitted. It was a fact of damaging force and effect that the defendant’s picture was in the rogues’ gallery, and therefore a confirmed criminal, even, if it had been proved as a fact, which even then ought not to have been permitted, but where it is purely hearsay that somebody else said that they had his “mug” or picture in the rogues’ gallery, the error becomes doubly intensified. It may have turned the scale in the minds of the jury. The jury came before the court and asked with reference to an instruction as to the plea of suspended sentence, and the court declined to give it. This shows the bent of the jurors’ minds, and this identical testimony may have been the turning point in their minds. They wanted to give the defendant the benefit of the suspended sentence. The court informed them they should not consider it, but this testimony remained before that jury, and whatever else may be said about it, there is no escaping the statement and conclusion that the defendant’s guilt was declared by the verdict of the jury and affirmed by this court. 1-Ie is in the penitentiary, or soon will be upon the issuance of the mandate of this court. That he has been damaged is not to be questioned. Then I restate this, rule: That wherever the error is of such a nature as may have probably influenced the jury to a conviction, when it might not possibly have occurred, it is reversible error. This is not debatable, and ought not to be in Texas. The second rule is that where the testimony admitted may have led the jury to assess a higher punishment than the minimum, then it is reversible error.

There is another view that might be presented in this particular case. The testimony upon which the state relied was practically all from accomplices. The jury, of' course, was instructed under those circumstances that if there is any evidence in the record tending to connect the defendant with the offense committed, it would be sufficient to- justify the jury in a verdict of guilt, provided they believed the testimony of the accomplices. The jury does not understand or appreciate as a rule close questions of that sort; they take a broader view, and do not generally understand what fact tends to connect the defendant with the offense about which the accomplice testified. This is so well recognized by the courts and bar that I do not care to discuss it. Then where a matter of this sort comes, and hearsay evidence of the fact that a man is such a notorious criminal that they have placed his picture in the rogues’ gallery at different places, or even as in the place testified by Kendall, it may have been taken by the jury as such evidence of his guilt that he was connected with the offense of burglary charged in the indictment.

Much might be written along these lines, but I have written as above because I believe this conviction was unjustly and illegally obtained; that defendant has not had a fair trial accorded him by the law of the land. For these reasons I respectfully enter my dissent.
      <§=oRor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HARPER, J. HARPER, J. DAVIDSON, J.

text:
    BAKER v. STATE.
    (No. 4061.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.
    On Motion for Rehearing, June 21, 1916.
    Dissenting Opinion July 3, 1916.)
    1. Criminal Law @=>304(16) — Evidence — Judicial Notice — Conviction.
    The trial court may take judicial notice of convictions in its own court.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 711, 2951%) Dec. Dig. &wkey; 304(16).]
    2. Criminal Law @=>315 — Presumption — Continuance oe Condition — Incompetency oe Witness.
    A witness, proven to be incompetent because of a felony conviction, presumably remains incompetent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 748; Dec. Dig. &wkey;316.]
    3. Witnesses @=>78 — Inoompetency — Pardon — Evidence.
    A copy of the pardon is the best evidence to show that a witness previously convicted of a felony was competent.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 195-200; Dec. Dig. @=>78.]
    4. Criminal Law @=>594(1) — Harmless Error-Interlocutory Proceeding — Continuance.
    There is no reversible error in refusing a continuance for an absent witness, who would have testified to facts which could have been established by other parties who were not called to the stand.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. &wkey;>594(l).]
    5. Criminal Law &wkey;366(6) — Evidence—Res Gesths — Statement oe Injured Person.
    Deceased’s declaration that accused stabbed him is admissible as part of the res gesteo, when made from three to five minutes after the stabbing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 820; Dec. Dig. @=>366(6).]
    6. Homicide @=>203(3) — Dying Declaration —Sjjnse oe Impending Death — Sufficiency of Showing.
    Deceased’s declaration that accused stabbed him, that he was turning blind, and would' 'fall, is admissible as a dying declaration, where lie did fall and die within a few minutes.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 432; Dec. Dig. &wkey;203(3).]
    7. Homicide @=>187 — Evidence — Self-Defense — Deceased’s Possession of Weapon.
    Under a self-defense plea, evidence that when deceased, stabbed by his wife’s father, staggered from his store, his wife put up a sign “Closed to-day,” is admissible to determine whether a revolver found hidden there was one used by deceased, or whether, as claimed by the state, it had been there always, and the store was closed in order to prepare self-defense evidence for the father.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390% ; Dee. Dig. @=>187.]
    8. Criminal Law @=>413(1) — Evidence—Confession — Admissibility—Statute.
    A statute making certain confessions inadmissible does not render accused’s denial that he stabbed deceased, made at the time of his arrest, inadmissible, where he defended on the ground of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-932, 935; Dec. Dig. @=>413(1).]
    9. Criminal Law @=>364(6) — Evidence—Res Gesms — Statement of Accused.
    Accused’s denial that he stabbed deceased is admissible as part of the res gestse, when made a few minutes after the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 817; Dec. Dig. @=> 364(6).]
    10. Witnesses @=>370(6) — Impeachment — Bias — Unfriendly Relation — Party Killed by Accused.
    Testimony that deceased’s wife, who was an important witness for the defense, did not visit her husband’s body for some time after his murder, is admissible.
    [Ed. Note. — For other cases, see Witnesses; Cent. Dig. § 1189; Dec. Dig. &wkey;370(6).]
    11. Witnesses @=>379(11) — Contradiction-Inconsistent Statements — Statement of Opinion.
    Where deceased’s wife testified that the killing was done in self-defense, her statement, made soon after the crime, that the killing was uncalled for, is admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1221; Dec. Dig. &wkey;379(ll).]
    12. Witnesses @=>337(5) — Impeachment — Character of Accused — Indictment.
    Where accused testified in his own behalf, the state could show that he had been indicted for a felony within the past seven years.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132,1140-1142, 1146-1148; Dec. Dig. @=>337(5).]
    13. Witnesses @=>360 — Impeachment — Evidence to Sustain Character — Acquittal.
    Where the state developed that accused had been indicted for a felony within the past seven years, he could show his acquittal of the charge.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dee. Dig. &wkey;360.]
    14. Criminal Law @=>1172(6) — Appeal—Review — Harmless Error — Refusal to Give Instruction.
    Refusal to instruct that accused had a right to visit the place of the murder is not prejudicial error, where the right was not disputed at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3159; Dec. Dig. @=>1172(6).]
    On Motion for Rehearing.
    15. Criminal Law @=417(13) — Evidence — Declaration by Third Persons.
    The statements and acts of deceased’s wife are not inadmissible as those of a bystander, where she took an active part in the quarrel preceding the murder.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 950; Dec. Dig. @=>417(13).]
    16. Criminal Law @=>1144(6) — Appeal—Reserving Ground for Review — Venue.
    Under Code Cr. Proc. 1911, § 938, providing that the Court of Criminal Appeals shall presume that venue was proven, the point that it was not proven cannot be first raised on appeal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2757, 3021; Dec. Dig. @=> 1144(6).]
    17. Criminal Law @=>304(6) — Evidence — Judicial Notice — Geographical Facts.
    The Court of Criminal Appeals takes judicial notice that Kerrville is in Kerr county, where the act creating the county provided that the point selected as the county seat should bo called Kerrville.
    [Ed. Note — For other cases, see Criminal Haw, Cent. Dig. §§ 705, 2951%; Dec. Dig. &wkey; 304(6).]
    Davidson, J., dissenting.
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Henry Baker was convicted of murder, and appeals.
    Affirmed.
    Jno. R. Storms, of San Antonio, and Gilbert C. Storms, of Kerrville, for appellant. H. C. Geddie and Lee Wallace, both of Kerrville, and C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the state penitentiary.

The first bill complains of the action of the court in refusing to grant a continuance. By the bill it is shown that the attendance of all the witnesses named was secured except two, H. A. Furman and Claude Abbleerumlie. The facts stated which appellant expected to prove by Furman would be material to his defense, and the question arises: Did the state in its contest show that the witness was an incompetent witness and could not testify, were ho in attendance on court? In the contest the state swears that Furman had been convicted of a felony and sentenced to the penitentiary, in the district court of Kerr county. The defendant contends that the only competent proof of this fact was a certified copy of the judgment and sentence. Generally this is true, and if Fur-man had been convicted in any other court than the district court of Kerr county there might be merit in his contention. But a judge takes judicial notice of all judgments and decrees entered in his court, and when he had his attention called to the fact that Furman had been convicted of a felony, he judicially knew that fact to be true, and no proof, oral or otherwise, was required. Mayhew v. State, 155 S. W. 197; Savage v. State, 151 S. W. 531; Blum v. Stein, 68 Tex. 608, 5 S. W. 454; 16 Cyc. p. 915. And where the incompetency of a witness had been shown, it is presumed that he continues incompetent, and if a pardon is relied on to re-establish his competency, a copy of the pardon must be produced by the party so contending. Schell v. State, 2 Tex. App. 30; Cooper v. State, 7 Tex. App. 194.

As to the witness Abbleerumlie, as appellant set up in his application the same facts by Bess and Nailer, both of whom were in attendance, and neither used as a witness, there was no error in overruling the application for a continuance.

In the next two bills appellant objected to Dr. A. A. Roberts and E. A. Wied being permitted to testify that from three to five minutes after the time deceased was stabbed deceased came from the front door of his place of business and ran rapidly to him and said, “Doctor, do something for me quick; I have just been stabbed; Mr. Baker stabbed me; old man Baker stabbed me; I am turning blind right now; catch me, I am going to fall;” that Dr. Roberts caught deceased, Dudley Laurie, as he fell; that deceased was perfectly sane, and died in a few minutes. The testimony was admissible, both under the res gestae rule and as dying declarations.

An objection was made to permitting the state to ask Mrs. Etwell Laurie on cross-examination if, shortly after the killing, she did not close the door of the confectionery and place thereon a placard, “Closed To-day.” Many objections were urged to this testimony ; the defendant not being present when the act was done. Mrs. Laurie was not a bystander, in a strict sense, in this transaction, according to her own testimony. Mrs. Laurie was a most material witness for the defendant, and testified to her husband being drunk, cursing and abusing her, and when her brother asked him to desist deceased cursed him and drew a gun on him ; that she then picked up a shotgun, drew it on him, and told him not to shoot her brother; that deceased laid his gun down, and she laid hers down; she says she went to hunt for an officer, but, failing to find the officer, she found her father and asked him to hurry to the confectionery; that her husband, deceased, was trying to shoot Ivy, her brother, when her father replied, “He must not do that; can’t you all get along?” that her father, Furman, and herself returned to the store; that after a few words passed deceased grabbed a gun and said, “I will kill all three of you;” that Furman grabbed the gun, and in the scuffle it looked like deceased was about to get the gun away from Furman, when her father struck deceased; that deceased then turned the gun loose and went out the front door, and this is the time Dr. Roberts says deceased made the statement-appellant’s testimony making such statement clearly res gestae of the transaction. It was right after the deceased left that Mrs. Laurie was seen to close the door and put up the placard, “Closed To-day.” The court, under the evidence of defendant, necessarily was required to charge if deceased assaulted appellant, or from his acts and conduct led appellant to believe he was about to assault Mrs. Laurie, or her brother, to acquit appellant. When the officers got in the house no guns were on the table, nor in sight, but were found lying under the mattress of the bed. The state’s contention was that deceased had no gun and drew no gun ; but the gun was all the time under the mattress on the bed, and the store was closed up, so that matters might 'be arranged, but the officers got in the store too quickly. Of course, the defendant claimed that Mrs. Laurie had placed the guns under the bed after her father had stabbed deceased. Such being the issue in the case, the evidence was clearly admissible, and the court did not err in so holding.

In bills 8 and 5 it is made to appear that the deputy sheriff, Henry Staudt, was permitted to testify that shortly after the cutting he approached appellant with the intention of arresting him, but 'before doing so, or saying anything that would lead appellant to believe he intended doing so, he called appellant to one side and said to him, “I understand you had a little trouble awhile ago,” and appellant replied, “I haven’t had a d — n bit of trouble.” Witness then made a further statement, “Somebody cut or stabbed Dudley Laurie pretty bad,” appellant replying, “I don’t know a d — n thing about Dudley Laurie ; ” that he then arrested appellant. Appellant was also questioned about- this matter on cross-examination, and it is to the testimony of Mr. Staudt and the cross-examination of appellant that the exceptions were reserved. Appellant had testified on this trial, and to a most vigorous case of self-defense, and the defense of his daughter and son; and why should not his statements made a few minutes after the cutting be admissible to show he made no such claim at that time? He was denying all knowledge, and would be still denying it, we suppose, hut for the fact that, with his dying breath, Henry Laurie had told Dr. Roberts and Mr. Wied who had cut him. It is true, if his statement had been a confession that he committed the deed, our statute, if he was under arrest, would exclude it; hut under no construction of the language can his words be construed into a confession that he committed the act, but instead is a most emphatic denial that he did so, and is wholly exculpatory. We examined this question in the cases of Whorton v. State, 152 S. W. 1082, and Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, and we do not deem it necessary to again discuss the question. In the Whorton Case we reviewed the authorities, and while our own decisions had not theretofore been uniform, yet the great weight of authority was that an exculpatory statement was not a confession within the meaning of the statute, and therefore the statute did not inhibit the testimony, and under the common-law rules the evidence was clearly admissible. It is made clear that appellant was not under arrest when he made the statements, nor does his testimony make it plain that the officer intended to arrest him. Aside from this, under the evidence in this case, the time elapsing and the facts and circumstances would render the testimony admissible as res ges-tee, under the authorities cited in section 341 of Branch’s Criminal Law.

As Mrs. Laurie was so material a witness for the defendant, her conduct on the occasion was admissible to prove the fact she did not go to the body of the deceased until late that night. This was admissible as affecting the credit to be given the testimony of Mrs. Laurie. It was unnatural conduct, if she cared anything for her husband; and while, perhaps, under the facts in evidence in this case, it would have but little weight, yet it was admissible, to be given such consideration as the jury deemed proper. It was also permissible to prove by W. C. Coleman that immediately after the killing Mrs: Laurie had said to him, “The killing was uncalled for.” On this trial she testified to a state of facts which authorized and rendered imperative the killing of her husband by her father to save his own life, her life, and the life of her brother; and as she was called as a witness by defendant to prove those facts, she could be impeached by contradictory statements made at a time near the killing.

As appellant testified in his own behalf, it was permissible, as affecting his credit, to prove that he had within less than seven years prior to this trial been indicted for a felony. Of course, the court should have and did permit him to testify that he was acquitted of the charge.

There were no exceptions reserved to the charge of the court, and the court gave four of the six special charges requested by appellant. One of them was fully covered by the main charge of the court, as well as by two of the special charges given. The other one refused was also fully covered in all its features, except that portion which would have instructed the jury “that appellant had a right to go to the place of the cutting.” This was not an issue in the case. The state’s testimony and the defendant’s testimony both show that appellant boarded at the place, and it was his home, and had been ever since deceased and his wife had moved back to Kerrville, and he had lived with them when they resided in Houston, before returning to Kerrville. As no such issue was in the case, nor could the jury have inferred from any evidence heard that appellant did not have the right to go to the place, but the whole case proceeded on the theory this was his home, the fact the court failed to so instruct the jury presents no error.

Appellant makes a strong case of self-defense, and if this is not true, then the killing would take place under such circumstances as to reduce the offense to manslaughter. The state’s case, to meet this, was mainly circumstantial; but we cannot say that the evidence will not sustain the finding of the jury, when the jury and the trial judge, who heard the testimony, find the state’s theory to be the true one.

The judgment is affirmed.

DAVIDSON, J„ dissents.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing in this case, and an exhaustive brief on one or two questions. In the first instance he contends that Mrs. Laurie was but a mere bystander, and her acts and conduct not admissible. If it be conceded that she was but a mere bystander, there would be strength in the contention of appellant, and the authorities cited by him applicable. But if, as we conclude, she was not a mere bystander; having no part or parcel in the transaction, then the authorities cited by him and quoted from so copiously have no bearing on the case. Was she a bystander, or a participant in the tragedy? When this is determined, the question is easy of solution. She testified, at appellant’s instance, that her husband, (deceased) was drunk on the occasion he had assaulted her by kicking her on the legs, twisting the skin off of her arms, etc.; that he then drew a pistol on her, and said if she did not stop fussing at him he would shoot her; that she told him she was going to leave, and began to pack her trunk, when some words were had about her drawing the money out of the bank; that they were fussing when her brother came in, and deceased cursed her and called her a crazy s-n of a b-h; that her brother remonstrated, when deceased drew a gun on him, and she drew a gun on deceased, and told him, if he did not lay the gun down, she would kill him, and deceased, her husband, laid the gun down. Certainly she was not a bystander up to this time, but a very active participant in the transaction. She says, when her husband laid the gun down, she went to look for an officer, but, failing to find one, she went to her father (appellant), and reported the circumstances to him, and told him that deceased would shoot Ivy, her brother, and had been trying to shoot her; that, when they all got back to where deceased was, there was cursing going on, and her brother told her father (appellant) that deceased had called her a “crazy s-n of a b-h,” and deceased replied, “she is that,” and grabbed a gun, and said, “I will kill all three of you,” meaning herself, her brother Ivy, and her father (appellant), and at this time her father struck the fatal blow.

Regardless of her cross-examination, and the other testimony in the case, we are at a loss to understand how, under this testimony, he can claim that she was but a mere bystander, or that the law applicable to acts and conduct of mere bystanders could or would have any application to her. In Century Dictionary “bystander” is thus defined :

“One who stands near; a chance looker-on: hence one who has no concern with the business being transacted.”

See, also, Webster’s Dictionary. And this definition has received judicial approval. Gay Oil Co. v. Atkins, 100 Ark. 552, 140 S. W. 739; State v. Jones, 102 Mo. 305, 14 S. W. 946, 15 S. W. 556.

The reason we did not discuss the decisions cited by appellant is because they referred to persons who were on-lookers, and were in no sense interested in or a party to the transaction, and when we held, as we do hold, that she was not a mere bystander, the rules of law applicable to bystanders were and are wholly inapplicable, and the rules of law as announced in Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746, Blain v. State, 33 Tex. Cr. R. 247, 26 S. W. 63, Baker v. State, 45 Tex. Cr. R. 292, 77 S. W. 618, Smith v. State, 48 Tex. Cr. R. 241, 89 S. W. 817, and White v. State, 60 Tex. Cr. R. 559, 132 S. W. 790, become and are applicable, and rendered the testimony of the acts and conduct of Mrs. Laurie admissible. The court made no holding that a material witness for the defendant could not be a bystander, but the acts and conduct and active participation in the transaction by Mrs. Laurie were such as showed that she was not a mere chance looker, but a participant in the entire difficulty.

Appellant also insists that, taking into consideration the testimony as to the way deceased treated his wife, Mrs. Laurie, the fact she did not go to his bedside until in the night ought to have but little weight, if any. This may be true. We are not passing on the weight to be given this testimony by the jury, but merely hold it admissible as showing the real condition of affairs, and to affect her credit as a witness, if it did so. The facts were all before the jury, and doubtless they gave it only such weight as it was entitled to receive at. their hands under the evidence.

The case of Marsh v. State, 54 Tex. Cr. R. 144, 112 S. W. 320, instead of holding the statement of Mrs. Laurie made to Mr. Coleman inadmissible, is authority for its admissibility. Mrs. Laurie had testified that deceased said, “I will kill all three of you,” and grabbed a gun, and those present were scuffling with him over the gun, when appellant struck deceased. This made a case of acting in self-defense. Now, immediately after the shooting, Mr. Coleman says Mrs. Laurie told him “the killing was uncalled for.” In the Marsh Case, supra, it was held:

“We think the testimony complained of in bill No. 3 was admissible as a circumstance to rebut and throw discredit on the original statement made by appellant. It was a legitimate subject of cross-examination, in that this fact, if true, was at variance with her statement of an insult by Baggett.”

The testimony was held inadmissible. The court says:

“It formed no part of the transaction, or conversation, or matter inquired of from Mrs. Marsh on her original examination. It wholly related to another transaction subsequent to the killing.”

In this case the testimony related wholly to this transaction, and was admissible to show she made a different statement immediately after the homicide to the one she testified to on the trial. We recently discussed this question in the case of McDugal v. State, and cited the authorities, and do not deem it necessary to do so again..

Appellant in Ms motion contends that the date of the death of deceased was not shown by the evidence, and that it was not shown that the killing occurred in Kerr county, Tex. H. W. Vowell and Clayt Love testified to his death occurring on the “8th day of last March.” The case was tried in January, 1916, and this necessarily fixed the time as March 8, 1915, and appellant is mistaken in his contention that the record does not disclose that the tragedy occurred prior to the presentment of the indictment. If the evidence did not show venue in Kerr county, it would be too late to raise that question for the first time in this court, by virtue of the provisions of article 938, C. C. P.; no issue as to venue having been raised in the trial court. The entire record shows that the killing occurred in Kerrville, and the act creating Kerr county in 1856 provided that the place selected as the county seat should be called Kerrville; therefore we take Judicial notice that Kerrville is in Kerr county.

We have discussed all questions appellant insists upon in his motion. The others were disposed of in the original opinion, and the motion for rehearing is overruled.

DAVIDSON, J.

(dissenting). This case ought not to have been affirmed. In writing what I purpose to say I shall not go into the merits of the case so far as the sufficiency of the evidence is concerned. The jury allotted appellant 25 years in the penitentiary. I do not, however, believe that a fair inspection of this record and legitimate conclusion reached therefrom will justify the verdict.

In my judgment the continuance should have been awarded for the absent witness Furman. The overruling of this proposition by the majority is based upon the idea that the trial court knew judicially that Furman had been years ago convicted of a felony, and therefore he was not a competent witness. If it be conceded that the court judicially knew of Furman’s conviction, it would not, therefore, follow that the court judicially knew that he was an incompetent or disqualified witness. A record of conviction has been considered a necessary step to disqualify a witness. This witness was absent, and his testimony was, as stated, of a very material nature. He was present and an eyewitness to the homicide, and would have testified, as shown by the application, to a clear ease of self-defense. The trial court disqualifies this witness, and this court sustains him in such disqualification because of a previous conviction of which it is said the trial court had knowledge. There was no issue tried by the court on this question. He may have been a competent witness, restored to citizensMp, so far as the record goes. In settling a serious issue of this sort against an accused, it certainly ought to be heard, and the testimony ought to be clear that the witness was not, at the time of the application for continuance, a disqualified witness.

Another bill recites that shortly after and on the same day of the homicide the wife of deceased, over objection of appellant, was permitted to testify that she had placed a placard upon the outer door of the confectionery store owned by herself and her deceased husband, upon which was written the words, “Closed To-day,” and further she was permitted, over objection, to testify that she was at the front of the confectionery building and had the door closed and had a placard of pasteboard in a round shape, upon which were written or printed the words “Closed To-day” in large letters, and that she was trying to paste or fasten said placard upon the front door shortly after the killing. Various and sundry objections were urged to this, but the court admitted it, as he states in his explanation, because it “appeared to be res gestee.” Another bill on the same question recites that, while the widow of the deceased was upon cross-examination, she stated that she did not go to see her husband at the undertaking parlor until the night after the killing in the daytime, and that she had placed a placard upon the front door of the confectionery store which had the words “Closed To-day” on it. To this all sorts of objections were urged. The court admits this with the explanation that the state, in offering this testimony, stated it was for the “sole” purpose of affecting the credibility of the witness, and it was admitted for such purpose, as stated at the time, and counsel for the defendant did not ask for a written charge limiting the purpose for which the jury might consider the same. In one bill the court admits the testimony on the ground that it was res gestee; in the second he sustains the purpose of the state in offering it, and admitted it for the purpose of affecting the credibility of the witness, and 'for that purpose only, and emphasizing this he qualifies, further, that appellant did not ask a written charge limiting this testimony. If it was res gestae, a charge limiting the testimony was not required, because in that instance it would be original evidence. If offered for the purpose of affecting her credibility as a witness, it was the duty of the court to limit it to that purpose, and see that it was not used as original testimony against defendant. Appellant was not present and had nothing to do with it, and knew nothing about it: in fact, the record shows he was in the hands of the officers under arrest.

There are so many reasons why this testimony was not admissible it would seem almost superfluous to state them. This was the act, not of the defendant, but of the wife of deceased. Defendant knew nothing of it, had no concern with it, was not aware of it, and it was the act of a party in his absence, closing the door of her confectionery, which was owned by her husband and herself. It was their residence, the confectionery being in the front part of the house; they residing in another part of the edifice. Whether this he the act of a bystander or not, it is the act of a third party, with which defendant had no concern and no connection. It could not be introduced on the theory that it was the act of a coeonspirator, for from that standpoint the object of the conspiracy, if one existed, had been accomplished. The deceased was dead. The act or statement of a conspirator, made after the completion of the conspiracy, is not admissible against one of the other coconspirators in his absence. He was unaware of the act or statement of the other conspirator after the transaction had ended. This I understand to be the settled rule. It, therefore, could not be original testimony, so far as defendant was concerned. The parties after the homicide had all scattered and gone. They were not at the house where the hilling occurred, which was in a bedroom in the rear part of the confectionery store. The business was carried on in the name of the wife of deceased. Deceased had just been hilled and carried to the morgue, or at least was not in this confectionery or any other part of the house occupied by himself and his wife. It is, therefore, not res gestae. It was the act of third parties in the absence of the defendant, without his hnowl-edge, consent, or concurrence.

But when the matter came again in the second bill of exceptions, the court qualifies it by stating that it was admitted to affect the credibility of the witness. Wherever testimony is introduced to affect the credibility of a witness, which might be damaging or illegal, it is the duty of the court to guard the jury against using it for illegitimate purposes ; in other words, instruct the jury that it can be considered only for the purpose for which it was introduced — that is, to affect the credibility of the witness. This testimony should not have been admitted, either as res gestee, or to affect the credibility of the witness. Here was the widow of the deceased, closing the house where the business of her deceased husband and herself was carried on, where they had been living, in part of which they resided as their home. Shortly after the death of her husband she closed the doors of the house against the curious and the outside world, and as evidence of the fact that the business was that day suspended. It is the first time, so far as the writer is aware, that the closing of a business house where one of the interested parties had died should be taken as evidence of a want of veracity, which would subject one of the owners of the house to impeachment for want of truth. It is a custom, which is a part of the current history of our race and people, that business houses and private residences are closed to the outside world when a member of the business house or a member of the family has died. It is not only expedient, but it is regarded by all right-thinking people as being the ethical and proper thing to do. Had she carried on her business with wide-open doors, with her husband lying near by dead but a short time, there might have been some reason for saying there was something wrong and unnatural that a wife would so act under such circumstances. This might have been the subject of criticism, showing that she was indifferent to the fact that her husband was so recently dead. But now we have solemnly adjudicated, and sustained by a court of last resort, that proper respect for the memory of the dead husband should be taken as evidence of impeachment of the truth and veracity of his wife, who with sorrow upon her life and in the shadow of bereavement had closed the doors to the outside world. The writer does not understand this character of reasoning, or how such charge should be imputed under such circumstances. Evidence of proper ethical act by the wife of the deceased ought not to be solemnly adjudicated to be evidence of her want of veracity. I do not believe such ruling should have been held by this court or made by the trial court.

There is a fact or two' thrown into the case which I suppose was done to aid the state and the record in this case. The widow testified that there had been trouble that morning between herself and her husband, and he threatened to kill her, got a pistol, and not only that, but tried to kill her brother, and that she went for the sheriff, and, failing to find him, informed her father, who was also a resident of the same house, of conditions, and the father went to where the parties were. She further testified that deceased got a gun with a view of killing her father, and while Furman and deceased were scuffling over the gun, deceased was trying to point the gun towards her father to shoot him, and that her father jerked out a small pocketknife and inflicted one wound upon deceased from which he died. This testimony placed a couple of guns and a pistol in sight in the room. When the officers entered the room some time afterward these guns had been put between some mattresses, or at least were so found. Of course, the state’s contention was that the story about the guns being used in the difficulty was not true, and that this, evidence of the guns being between the mattresses was evidence of the fact that her testimony was not true. This was legitimate testimony to show, if they could, before tbe jury that with reference to this matter she may have been mistaken or testified falsely. She explains this by stating that after tbe difficulty, and after all the parties had left the room, she took the guns and put them between the mattresses, where they were subsequently found. These facts went before the jury for what they were worth, to be weighed by them. They could attack her testimony that the guns were in sight and sought to be used during the difficulty by showing they were not so used. She explained in consonance with her other testimony that she hid the guns; but, be that as it may, this testimony was of benefit to the state, it occurs to the writer, and it put her in the attitude, or it might hare been so argued, of placing the guns where she placed them, a fact favorable to the state, both to contradict her as to her first statement, and to show her sympathy for the state by placing the guns where they could not be used, and therefore impugning the question of self-defense, so far as that phase of the evidence is concerned. But how this could justify the introduction of evidence that the widow dlosed the business and private residence subsequently by placing a placard on the door announcing the house was closed I do not understand.

“Harmless error” seems not to have been thought worthy of consideration in this case, because appellant received a verdict of 25 years for murder. He did not receive the minimum punishment of 5 years for that offense. That there was manslaughter in the case under the facts is not to be disputed, and the majority opinion admits it was a strong case of self-defense, and yet appellant received 25 years, which, at his age of 56, means more than his lifetime. The record shows that he is lame and sick, and suffering with rheumatism and other ills to which flesh is heir.

I do not care to go into other matters of the case and discuss them. It is useless to have said what I have said, but it occurs to me as being so novel, and so out of the ordinary, and so unjust, that the evidence of the sorrow of the widow, closing the business house and private residence against the outside world, should be held as evidence of a want of credibility from the standpoint of véracity or truth, that I could not sanction the affirmance of this case from that standpoint. That it was damaging is man-' ifested by the verdict. I do not believe it should be entertained that a surviving relative of a deceased member of the family should have his or her veracity and standing in the community attacked and held up to scorn because of the ordinary everyday respect paid to the memory of a deceased relative. This is not our civilization. It does not belong to our people, and I would not subscribe to that. I would have dissented on that proposition, if on no other. There are other questions in the case, but I simply desired to make the few above remarks. This judgment ought not to have been affirmed. It ought to have been reversed, and appellant awarded another trial. I do not believe a man should be sent to the penitentiary except upon what ought to be a legal trial.
      @=^For other ..ases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes