author: HARPER, J. PRENDERGAST, P. J. HARPER, J.

text:
    CLAYTON v. STATE.
    (No. 3750.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Chimin An Law &wkey;>596 — Preliminary Proceedings — Continuance — Cumulative Testimony.
    The question of whether testimony of a witness, for whose absence a continuance is sought, is cumulative is immaterial on the first application for a continuance.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. &wkey;> 596.]
    2. Cbiminal Law <&wkey;917 — New Trial — Excluded Evidence — Admissibility.
    It is not error sufficient to warrant a new trial to refuse a continuance for taking the testimony of a witness, by whose affidavit it appeared that he could only testify as to what a certain witness had told him when that witness was not allowed to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2161, 2162; Dec. Dig. <&wkey;> 917.]
    3. Criminal Law <&wkey;598 — Refusal of Continuance-Absence of Witnesses — Diligence.
    That defendant was refused a continuance on account of the absence of two witnesses was not alone a ground for reversal, where summons had been sent to another county for them, and the sheriff had written the clerk of courts of the trial county that he could not locate them, asking a complete description, and the clerk had filed his letter with the papers of the case, but failed to notify the defendant or his counsel of it; such facts not showing due diligence on the part of the defendant.
    [Ed, Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. <&wkey; 598.]
    4. Criminal Law <&wkey;G65 — Exclusion of Witnesses — Invocation oe Rule — Discretion of Court.
    Where, in a prosecution for perjury, two of defendant’s witnesses were not allowed to testify because of failure properly to summons them, and three others were not allowed to testify because the rule had been called for and they had heard some of the state’s testimony before being placed under the rule, and all the testimony of the five witnesses as shown by affidavit would have been material on the issue of whether the defendant falsely testified in another trial, conviction will be reversed, where the loss of the testimony was not due to the fault of the defendant, although the court on appeal will not ordinarily interfere with the exclusion of testimony by the trial court, in its discretion, where the rule has been invoked.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1549-1566y2 ; Dec. Dig. &wkey; 665.Í
    5. Criminal Law <&wkey;396 — Perjury <&wkey;32— Evidence — Admissibility.
    In a prosecution for perjury, alleged to have been committed by defendant’s swearing in another trial that a certain man was not present, and that no gambling was done in a room where the state alleged his presence and the gambling, it was error to admit evidence that one of those present pleaded guilty to gambling, but, that having been admitted, the defendant should have been permitted to show that those who pleaded not guilty were acquitted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. &wkey;> 396 ; Perjury, Cent. Dig. §§ 108-116; Dee. Dig. @=32.]
    6. Criminal Law &wkey;>922 — New Trial — Instructions — Objections.
    Under Pen. Code 1911, art. 310, fixing the minimum penalty for perjury at two years, where the court instructed that the minimum was five years, and the jury assessed the minimum as stated, the error being fundamental and prejudicial to the defendant, could be complained of on motion for new trial, and was not waived by failure to object to the charge on the trial, in spite of Code Cr. Proc. 1911, art. 743, requiring all objections to charges to be made on the trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. @= 922.]
    7. Criminal Law <&wkey;508 — Witnesses under Indictment — Competency.
    That two or more witnesses were indicted for perjury in the same case would not render them incompetent, in the absence of a conspiracy between them and defendant to commit the perjury, since an indictment does not render accused incompetent as a witness unless he is charged with being an accomplice, accessory, or principal in the offense for which the person is on trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. &wkey;> 508.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Eayette County; Prank S. Roberts, Judge.
    Henry Clayton was convicted of perjury, and he appeals.
    Reversed and remanded.
    The qualifications referred to in the dissenting opinion, paragraph 1, are:
    “The foregoing bill of exceptions is approved with the following qualification and explanation : The motion for continuance was contested by the state and application was overruled, and same was assigned as error in defendant’s motion for new trial, which was likewise contested by the state. It appears from the record in the case that the testimony of Will Sief-kin was not material to the defense, as shown by his affidavit attached to and made a part of state’s contest to new trial and also made a part of this qualification, and it appears that counsel for defendant failed to use due diligence to obtain the testimony of the witness Perry Hornsby, as is shown by state’s contest to motion for new trial, paragraph 3, and affidavit of the district clerk, all of which is made a part hereof. Counsel for defendant failed or refused to inform clerk whether witness Hornsby was white or black, or give him any assistance to location [of] said witness, other than shown by clerk’s affidavit.”
    On page 78 is paragraph 3 in state’s contest, as follows:
    “3. The court did not err in refusing'to grant defendant’s application for a continuance on account of the absence of Perry Hornsby, because one of the attorneys of record for the defendant, in filing his application with the district clerk for his witnesses, simply stated in Ms application the following: ‘Perry Hornsby, Plum, Texas, or Cameron, Texas’ — as is shown by the application of defendant for subpoenas for witnesses filed herein on May 3, 1915, marked ‘Exhibit A,’ attached hereto, and made a part hereof; that the district clerk at the time asked said attorney, John T. Duncan, to give him some better description as to the avocation and location of said witness, which the said attorney failed and refused to do, as shown by the affidavit of the district clerk hereto attached, marked ‘Exhibit B,’ and made a part hereof; that thereafter, to wit, on May 6, 1915, four days prior to the time that this cause was set down for trial, the district clerk received a postal card from Allen Hooks, sheriff of Milam county, requesting some further description of the witness Hornsby; that this postal card was filed with the papers in this cause on May 6, 1915, which card is hereto attached, marked ‘Exhibit C,’ and made a part hereof; that defendant and his counsel made no effort to procure the attendance of this witness, except as is set out in the application marked ‘Exhibit A,’ as stated above.”
    The qualifications referred to in the dissenting opinion, paragraph 2, are:
    “The above-named witnesses were in the courtroom at the time counsel for defendant invoked the rule; all other witnesses were placed under the rule, and wore retired from the courtroom under proper instructions, and after the state had rested defendant offered these witnesses who had not theretofore been sworn and who had remained in the courtroom and heard the greater part of the trial, and especially a greater part of the state’s case. If counsel instructed these parties to stay out of the courtroom the court was not so advised during the trial, and said negro witnesses did not stay out of the courtroom during the examination of the principal state’s witnesses, and, the rule having been invoked by counsel for defendant, and no valid reason appearing why said rule should be modified, the objection by the state was sustained for the reasons assigned in state’s contest to motion for new trial as set out in paragraph No. 7, and made a part hereof.”
    On page 80 is paragraph 7 in state’s contest of motion, as follows:
    “7. The court did not err, as alleged in defendant’s motion for a new trial in section 22, in refusing to permit the witnesses Rich Henderson, Will Zachary, and Will Steward to testify, because defendant’s counsel had invoked the rule as to witnesses and failed and refused to have the said three above-named witnesses sworn with the other witnesses and placed under the rule, and all three were in attendance upon the court, and were in the courtroom when the other witnesses were sworn and placed under the rule; and, after they had heard a part, if not all, of the state’s witnesses testify, defendant’s counsel then sought to have these three witnesses to testify in the case in behalf of the defendant. To have permitted them to testify would have been an injustice to the state, especially in view of the fact that all three of them then had indictments pending against them, wherein they were charged with perjury alleged to have been committed in the trial of the same case in the county court in which it is alleged this defendant committed perjury.”
    Duncan & Burleson, of La Grange, for appellant. G. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

It appears that one Rich Henderson was tried in the county court on an information containing two counts; one charging that on the 11th day of November, 1913, the said Henderson did unlawfully bet and wager money at a game played with cards, the other count charging that Henderson did knowingly go into and remain at a place where a game of cards was being played. On the trial of that case it is alleged that appellant testified that there was no card playing going on in the room alleged at that time, and that Henderson was not present in said room at the time alleged, and upon this testimony the charge of perjury is based. That appellant was duly sworn and so testified on the trial of said Henderson is not contested, he contending on this trial that he did so testify, and that his testimony was true. To show the materiality of the hereinafter recited matters, we will anote one paragraph of the court’s charge:

“You are further instructed, if you find from the evidence, or have a reasonable doubt thereof, that the said Rich Henderson, referred to in said indictment, was not in fact present at the time and place of the alleged games of cards, if any, in the town of Plum, referred to in the indictment in this case, then, in that event, you will find the defendant not guilty.”

Thus it is seen the court, under this record, made the guilt or innocence depend on the presence of Rich Henderson in the room where the gambling is said to have taken place. On the trial of the case J. M. Richardson testified he was a deputy sheriff, and that he went into this room, and they were playing cards; that he took down the names of some 10 men in the room, and filed a complaint against them; that he did not take down the name of appellant, nor Rich Henderson; that some one got out of the window, and he was afterwards informed that it was Rich Henderson who got out the window, .and a complaint -was filed against him. Appellant, on the trial of the Rich Henderson case, and on the trial of this case, swore he was the person who got out of the window, and that it was not Rich Henderson. Under this record it is manifest, under the charge of the court, if it was appellant who got out of the window and not Henderson, he was entitled to be acquitted. The whole case hinges around the identification of the man who got out of the window, the state’s case being that it was Rich Henderson, and appellant’s that he was the man who got out of the window.

The indictment against appellant was returned April 30, when he was arrested. On May 3d, among other witnesses he secured process for Will Siefken to Jackson county, and to Milam county for Perry Hornsby. Neither of them were in attendance on court, and when the case was called for trial on May 10th, appellant moved to continue the case on account of their absence. This was the first application for continuance. So the question of cumulative testimony is immaterial. By the witness Perry Hornsby he stated he expected to prove—

“that he was in the house in the rear of Morgan’s saloon where it is claimed that Rich Henderson was dealing monte, and other persons were present, and by the witness Perry Horns-by this defendant expects to prove that he was in Morgan’s saloon at the same time the witness J. M. Richardson was in said saloon, and that the said Perry Hornsby entered said room just in advance or just ahead of the state witness J. M. Richardson, and by this witness the defendant expects to prove that Henderson was not present and was not gambling or dealing monte and by this witness this defendant expects to prove that no gambling was going on in said room at the time.”

The state’s witness Richardson testified he went from the saloon to this room where he says gambling was going on, and the testimony of this witness Hornsby would be in direct conflict with the testimony of Richardson. The materiality of this testimony is not questioned by the court, but he says that appellant did not use diligence, in that after the sheriff of Milam county had received the process he wrote to the district clerk of Payette county:

“You sent me subpoena for Perry Hornsby. Oan’t locate him. Is he white or colored? Where does he live? Give all information about him.”

The clerk received this request on May 6th and filed it with the papers, but did not answer nor call appellant’s attention to it, and appellant and his counsel say they had no information in regard to it until this case was called for trial.

As to the witness Siefken, the state attaches his affidavit to its contest of appellant’s motion for new trial, evidencing that he in fact was in Jackson county, and if process had been properly served when sent, his attendance could have been obtained. In the affidavit he states he did not see who got out of the window, but says he was told at the time it was appellant, and not Henderson, by Will Steward. If this was all that appellant stated he expected to prove by him, it would not present error, as the court did not permit Will Steward to testify. If Steward had been permitted to testify, and it was sought by the state to impeach his testimony, then the testimony would have been admissible, but, in addition to this, appellant swears he expected to prove by Siefken the following facts:

“The evidence for the state and the defense will show that there were 10 or 12 parties in said room at the time the said Richardson entered, and the evidence will show that 1. party in said room made his escape out of a window. And the chief issue in the trial of Rich Henderson in the county court was as to whether Rich Henderson was in said room at the time it was entered by the said Richardson, and whether or not Rich Henderson made his escape out of said window, and by the witness Sioflcen it is expected to be proven that he entered said room shortly after it was entered by the state witness Richardson, and he will swear that he saw no gambling going on, that he saw no cards on the table and no money on the table and that the house was not a gambling house, and was not used for that purpose, and that if it was used at all, it was used by persons who desired to drink beer or other liquors privately, and, further, that said absent witness saw this defendant in the village of Plum on that day, and he did not see Rich Henderson and this defendant at the time he was pointed out to said witness as the party who got out' the window.”

Thus it is seen that appellant states he can prove by Siefken that he went into this room and will swear he saw no gambling going on; that he saw no cards on the table, and that the room was not used for a gaming room, but one in which to drink beer. This was on a material issue in the case, and he says, furthermore, that witness will swear he saw appellant there at the saloon and did not see Henderson. This would have an indirect, if not a direct, bearing on which one of the two got out of the window, and Siefken’s affidavit and testimony given on the trial of the case in the county court, showed he would have so testified.

If this was the only matter complained oí in the record, we might hesitate to reverse the case on account thereof, taking into consideration the qualification attached to the bill by the court. But in another bill it is shown that during the trial of the case appellant called Rich Henderson, Will Zachary, and Will Steward as witnesses in his behalf, and states:

“By the witness Rich Henderson the defendant expected to prove that he was not at Plum on the 11th day of November, 1913, and was not in the room in the rear of Morgan’s saloon on that day or at any other date; that at the time when this alleged offense was committed, he was at work for Dr. Crutzbauer on Dr. Crutz-bauer’s farm over seven miles distant, from Plum or from Morgan’s saloon; that he was not in the said building, and was not the person who got out the window, when Richardson and his witnesses appeared at the door of the room and arrested all the parties remaining in said room. This is the person who appellant is alleged to have testified falsely was not present on the occasion mentioned.
“By the witness Will Steward he expected to prove that ho, Will Steward, was in said room at the time Richardson entered the same, and that Will Steward knew Rich Henderson, and by Will Steward he expected to prove that Rich Henderson was not in said room at that time, or at any time before or at any time thereafter, while the said Richardson was arresting, or attempting to arrest, the parties in said room, and by said Will Steward he expected to prove that he (Henry Clayton) jumped out the window and made his escape, and that Rich Henderson was not in the room, and Rich Henderson did not get out that window.
“By the witness Will Zachary he expected to prove, and would have proven, that Zachary was in said house when Richardson and his assistant witnesses entered the same, that Will Zachary knew Rich Henderson, and that Rich Henderson was not in said room, and had not been in said room, and that Rich Henderson was not the party who got out the window, but the defendant was the party that got out the window.”

It is thus seen that the testimony of each of these witnesses would have borne directly upon the material issues in the case. The court excluded each of the three witnesses named on the ground that the rule had been demanded by appellant, and these witnesses had heard a portion of the testimony offered by the state before they were placed under the rule. Appellant was deprived of the testimony of five of his most material witnesses, whose testimony went direct to the issues involved, and the testimony of all of whom would support appellant’s testimony and his contention. He was forced to rely on the testimony of himself and Louis Burrell alone, on the issue as to whether gambling was going on in the room, and whether or not Henderson was in the room. Ordinarily we will not disturb the action of the court in excluding testimony where the rule has been invoked. It is a matter confided to the trial court’s sound discretion. But in a case like this, where the person on trial has been deprived of all his witnesses (except one) on the material issues in the case, and it is made to appear that they would testify to these material facts, three of them being in attendance on court, and through no fault of appellant he has been deprived of their testimony, we are inclined to think the court erred in not granting him a new trial. Each of the bills might not, in and of themselves, present reversible error, but when we consider them together and see that appellant was deprived of the testimony of five of his most material witnesses, a greater number than who testmed for the state that gambling was going on in the room, and that Henderson was present, it appears that appellant has not had the issue of his guilt or innocence fairly determined. If Henderson was not present, as the testimony of all of these witnesses would tend to show, then the state’s case must and would fail, for he is the man the state’s witnesses say was dealing the cards. So the question of his presence on this occasion, as shown by the charge of the court, was necessary' to be shown, and the testimony of all five of these witnesses would tend strongly to negative his presence in the room on that occasion.

The result of the trial of Rich Henderson in'the county court could not ordinarily be shown, and the court would not err in so holding. The result of his trial, and that of any of the others charged with gaming on that occasion, would not be admissible on this trial, and on another trial the court should not only exclude the testimony as to the result of that trial, but exclude as well the result of the trial of any and all the others. However, on this trial the court permitted the state to prove that one of the men, Will Zachary, pleaded guilty to a charge of being a common gambler, filed against him on the occasion in question. If the state was permitted to prove that one of them pleaded guilty to being a common gambler, then in justice and fairness appellant ought to have been permitted to prove that those charged on that occasion who contested their cases were adjudged not guilty. This would be but common fairness, and especially does the injustice appear in this case when it is shown that Will Zachary was one of the witnesses for defendant who was not permitted by the court to testify, and who, the bill shows, would have testified in behalf of appellant that Henderson was not present, and doubtless would have explained why his plea of guilty to being a common gambler was entered. However, on another trial the court will exclude the result of the trials of all the others, whether adjudged guilty or not guilty, for as the court or jury found in those cases should not be used to affect the finding of the jury in this ease. They should pass on that question uninfluenced by the verdict or finding in any other case.

Again the court instructed the jury that the punishment for perjury was not less than five years, nor more than ten years, and instructed the jury if they found appellant guilty to assess his punishment at not less than five years, nor more than ten years. The jury assessed the punishment at the least term authorized by the charge — five years. The state admits this was error, as the statute fixes the minimum punishment at not less than two years. Article 310, P. C. While admitting this was error, the state insists that, as the charge was submitted to appellant’s counsel, and no exception was taken to the charge in this respect, it was too late to complain of this error in the charge after verdict in the motion for a new trial, and cites us to the cases of Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867; Robbins v. State, 57 Tex. Cr. R. 8, 121 S. W. 504; Work v. State, 3 Tex. App. 233. Also a large number of other cases, wherein we have held, since the amendment of old article 723 (now 743) Code Cr. Proc., if the charge is submitted to appellant’s counsel, we will not reverse the case if exception is not reserved at that time. This is the general rule, and one to which we have always heretofore and will hereafter adhere, but to each and all of those instances an exception has been noted, and that is, where fundamental error is shown, we will take notice of it, even though complained of for the first time in this court. Many cases have been reversed because of fatal defects in the indictment, although complained of for the first time in this court. Hunter v. State, 73 Tex. Cr. R. 460, 166 S. W. 164; Johnson v. State, 41 Tex. 65. Cases have been reversed because the court authorized a conviction for assault to rape when the indictment charged attempt to rape. Shockley v. State, 71 Tex. Cr. R. 475, 160 S. W. 452; Wyvias v. State, 64 Tex. Cr. R. 236, 142 S. W. 585. Many other similar instances could be cited where cases have been reversed, although not complained of until after verdict, if the error pointed out was a fundamental one. So the question in this case, as the error was not pointed out until verdict, is, Is the error a fundamental one? If it is, we are authorized to review the action of the trial court in refusing to grant a new trial because of said error. If it is not a fundamental error, then, as appellant did not except to the charge when presented to him, we cannot review the action of the trial court in overruling the motion for a new trial because of said error admitted to be in the charge of the court. What is, and what is not, fundamental error has been many times discussed, but no definite rule has been announced by our decisions, so far’ as we have been able to ascertain. The contention that this is not a fundamental error has support in the cases of Work, Robbins, and Manning, supra. In the Work Case, the court erroneously instructed the jury as to the punishment for aggravated assault, but as the jury assessed the minimum punishment authorized by law, such error was held not to be ground for reversal, although the case was reversed on other grounds. In the Robbins Case the minimum punishment was also assessed, and authorized by the charge, although the punishment was not correctly stated. It was held too late to complain of the matter after verdict. In the Manning Case, the appellant was charged with perjury, and the court in that case made the same mistake in his charge as was made by the court in this case, fixing the minimum punishment at five years, when it should have been only two years. The court held that as the punishment was assessed at seven years, and was within the limit fixed by law, it was too late to complain of the matter after verdict. If this was an original proposition, the writer would hold that where the court incorrectly stated the minimum punish-. ment, and the verdict of the jury assessed more than the minimum punishment fixed by law, it would be such an error as could be complained of at any time. The jury in this case gave the minimum punishment authorized by the charge of the court, and who can say they would not have assessed the minimum fixed by law had the court authorized them to do so in his charge? Three years taken out of one’s life by confinement in the penitentiary is a great length of time, and we nor any one else can say, under this record, that if the law had been correctly stated in the charge to the jury they would have assessed more than the minimum fixed by the law as punishment for this crime. Our civil courts have held:

“The error is a fundamental error which goes to. the merits of plaintiff’s cause, * * * and will be considered whether assigned as error or not, whore the justice of the case seems to require it.” Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329, City of Laredo v. Russell, 56 Tex. 398.

See, also, Jenkins v. State, 28 Tex. App. 86, 12 S. W. 411; Graham v. State, 29 Tex. App. 32, 13 S. W. 1013; Williams v. State, 25 Tex. App. 76, 7 S. W. 661, and cases cited in section 2348, Willson’s Crim. Code.

In the Work and Robbins Cases the minimum punishment authorized by law was assessed, and we think the court correctly held such error under such circumstances presented no reversible error. In the Manning Case more than the minimum authorized by the court in his charge was assessed. So it could not be said if the court had authorized a lower punishment the jury would have assessed it. But this case is different from either of those cases; the jury did assess the lowest punishment authorized by the charge of the court, but more than double the minimum punishment fixed by law. In this character of case the writer thinks such error should be considered, even though not complained of until in the motion for a new trial. This gives the trial court an opportunity to correct his own errors, and award a new trial, and where one is manifest, and admitted to be error, and which error may have contributed to more than doubling the punishment that might otherwise have been assessed against one on trial, a new trial should have been granted. At least, this case should be reversed on account of the other matters herein discussed.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). 1. The state contested appellant’s motion for a continuance, and also his motion for new trial on the same ground. The court correctly overruled both, and gave the reasons in his qualification of his bill, which are borne out fully by the record. The reporter will quote the judge's qualification on pages 57 and 78 of the record.

2. The witnesses Rich Henderson, Will Zachary, and Will Steward sought to be introduced by appellant, were under indictment for perjury in the same case and transaction as appellant was in this case. Under the proper construction of article 91, P. C., and article 791, C. C. P., I think they ought to be held incompetent (Crutchfield v. State, 7 Tex. Cr. App. 65), but even if they were not incompetent, the court was right in refusing to permit them to testify because appellant had not had them placed under the rule. The reporter will quote the court’s qualification of appellant’s bill on pages 44 and 80 of the record.

3. The statute by the act of April 5, 1913, page 278, was passed expressly for the purpose of preventing new trials and reversals because of just such inadvertent omissions as to the penalty in the court’s charge as was made in this case, and such an error is not and cannot be fundamental. If advantage can be taken of such an error by motion for new trial, then the statute is vain and ineffective; hut it is not so, as all the time heretofore held by this court construing it. This case should not be reversed, but affirmed.

HARPER, J.

I did not know, at the time of writing the original opinion, it would be contended that, as the witnesses were indicted for perjury, this would render them incompetent as witnesses, and did not discuss that feature. That two or more witnesses were indicted for perjury on account of their testimony in a given ease would not render them incompetent, unless it was contended they had entered into a conspiracy to do so, and they had been so indicted. An indictment does not render a person incompetent as a witness, unless the witness is charged with being an accomplice, accessory, or principal in the commission of an offense for which the person is on trial. Article 791, C. C. P. Seeker v. State, 28 Tex. App. 479, 13 S. W. 774, Gray v. State, 24 Tex. App. 611, 7 S. W. 339, and Anderson v. State, 56 Tex. Cr. R. 369, 120 S. W. 462, are strictly in point.
      <§=mFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©n^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HOPKINS v. STATE.
    (No. 3787.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.)
    1. Witnesses <&wkey;406 — Impeachment—Competence oe Impeaching Evidence.
    On a trial for an offense against a girl whose age was sharply contested, where the mot her testified concerning her age and that a younger daughter was born in 1905, the testimony of a witness that he taught school in the neighborhood in which the mother lived in 1907, and that all of the children went to school to him and were within the scholastic age, thus making the youngest girl at least seven years old, should have been admitted to impeach the .mother’s testimony.
    [Ed. Note.- — For other eases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. &wkey;406.j

      2. Witnesses <&wkey;414 — Corroboration of Impeached Witness — Competency oe Corroboration.
    It was error to permit the state to introduce in support of the mother’s testimony a census blank signed by her in which the ages of the girls were stated, where it was signed after the offense was committed, the indictment returned, and after the mother had testified before the grand jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. <&wkey;414.]
    3. Witnesses <&wkey;392 — Impeachment—Competency op Impeaching Evidence.
    A census report signed by the mother before the offense was committed and before there was any motive to swear falsely, in which the birth of the girl was stated to have occurred in a different year from that testified to on the trial, should have been admitted to impeach her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. 392.]
    4. Criminad' Law i&wkey;1134 — Appear—Record —Matters Presented por Review.
    Where the court qualified a bill of exceptions complaining of the exclusion of a census blank offered for the purpose of impeaching a witness, by stating that it would have been admitted if it had been properly proven up and that appellant’s counsel contended that it had been sufficiently proven to authorize its introduction, thus showing that the court and counsel placed a "different construction on the testimony, the appellate court could look to the record to see whether the testimony sufficiently proved such report to make it admissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    5. Witnesses &wkey;>392 — Evidence—Sufficiency of Preliminary Proof.
    Proof that a census blank, offered to impeach a witness who testified concerning the ages of her children, was signed by her, authorized its introduction in evidence, though the answers to the questions therein were written by the census taker.
    [Ed. Note. — For other cases, see Witnesses, OentDig. §§ 1249-1251, 1257; Dec.Dig. &wkey;392J
    Prendergast, P. J., dissenting.
    Appeal from District Court, Upshur County; W. R. Heath, Judge.
    Pierce Hopkins was convicted of an offense, and he appeals.
    Reversed and remanded.
    Mell & Stephens, of Gilmer, and A. U. Puckett and A. S. Baskett, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at 5 years' confinement in the state penitentiary. We will not discuss the testimony, nor all the bills of exception as presented by the record as, in our opinion, the case must be reversed and remanded for a new trial.

The age of the girl was a most sharply contested issue. She and her mother testified to the act of intercourse, and that she was under 15 years old. Appellant denied the act of intercourse, and contended that the girl was more than 15 years of age, and introduced two witnesses who so testified, and if the jury found that in fact he did have the act of intercourse, he was guilty of no offense, as all the testimony shows that if an act of intercourse occurred it was by mutual consent. Her age was a most sharply contested issue on the trial. The girl and her mother swear that Cyrinia was bom June 28, 1901. This would make her only 13 years of age at the time of the alleged rape. The mother, while testifying, said that her daughters, Mirt and Sapolio, were younger than Oyrinia; that Mirt was born November 13, 1903, and Sapolio was born February 24, 1905. If she stated the ages of. these girls correctly, Sapolio would only have been 9 years old in 1914, 4 years younger than Oyrinia. After she had so testified appellant introduced J. W. Sharp as a witness, and he testified he taught school in the neighborhood in which Haza Wallace, the mother, lived in 1907; that Oyrinia, Mirt, and Sapo-lio all went to school to him in 1907. As tending to affect her credit as a witness on the issue of age of the girl, bill of exceptions No. 4 shows that if Sharp had been permitted to do so he would have testified that all three of the girls went to school to him in 1907, and they were all within the scholastic age — making the youngest girl at least 7 years old in 1907, and the prosecuting witness in this case over 17 years of age in 1914. Haza Wallace had testified Sapolio was born in February, 1905, and if so she would only have been 2% years old in the fall of 1907. This witness would have sworn as shown by the bill, “all three of the girls were within the scholastic age,” and would have made Sapolio at least 7 years of age, instead of 2% years of age in 1907, Mirt at least 8y2 years of age, instead of 4 years of age, and Oyrinia at least 10 years of age instead of 6 years of age. Had this witness been permitted to testify that Mirt and Sap-olio had gone to school to him in 1907 and were within scholastic age, the evidence would have had a strong tendency to prove that the mother was incorrectly stating Cyr-inia’s age on this trial, and Oyrinia was in fact over 15 years of age at the time of the alleged act of intercourse. This testimony was admissible, and the court erred in excluding it.

Again it is shown that when Haza Wallace was being attacked as not correctly stating the age of these girls, the state was permitted to introduce the census of 1915 in support of her testimony. This was made by her after she contended the alleged offense had been committed, after she had gone before the grand jury, and after this prosecution had begun. It has always been the rule in this court that a witness cannot be supported or sustained by similar statements to that testified on the trial made after the motive existed, which would likely prompt him to testify falsely. This 1915 statement was made in May, 5 months after I-laza Wallace had testified before the grand jury in January, when the bill was returned, and the census blank signed by her after the bill of indictment had been returned, as to the age of the girl, would not be admissible to support her testimony on the trial, and should not be admitted on another trial. Sanders v. State, 31 Tex. Cr. R. 529, 21 S. W. 258; Conway v. State, 33 Tex. Cr. R. 330, 20 S. W. 401; Anderson v. State, 50 Tex. Cr. R. 130, 95 S. W. 1037.

We also think the court erred in not permitting the defendant to introduce the census report made in May, 1914, before the motive to swear falsely arose. This report would have tended materially to weaken the testimony of Haza Wallace on this trial, as in that census the birth of the girl is stated to have occurred .in a different year to that she testified to on the trial. In the qualification of the bill the court says he would have admitted it, if it had been properly proven up, and so stated to appellant’s counsel; that appellant contended it had been proven up sufficiently to authorize its introduction as tending to impeach the witness. We think appellant’s counsel correct in such contention. We might not be authorized to iook to the evidence, if the court in his qualification has not shown that he and appellant’s counsel placed a different construction on the testimony adduced, but as he shows this to be a fact in his qualification, then we must look to the record to see which one placed the correct construction on the testimony. Haza AVallace, in testifying about the 1914 census, said:

“I did not write that for the year 1914. I think that is Sadie Eubanks’ handwriting. Sadie Eubanks took it (the census) last year. I did not do the writing there of the age of Cyrinia AVallace. I signed it, but did not write it.”

Signing it, made it her act. It is known that the census taker always fills the blanks after asking the questions, and then gives- the blank filled to the person whose census is being taken for signature. As Haza Wallace admitted she signed the 1914 census, it was sufficiently proven up to authorize its introduction, as tending to impeach her testimony on the trial. While as hereinbefore stated, statements made after the motive to swear falsely has arisen, are not admissible in support of her testimony, yet it is equally well settled that statements made by her prior to the time the motive to swear falsely has arisen are admissible to impeach her. Hunter v. State, 8 Tex. App. 76; Deneaner v. State, 58 Tex. Cr. R. 624, 127 S. W. 201; Bostick v. State, 11 Tex. App. 126; Sanders v. State, 54 Tex. Cr. R. 111, 112 S. W. 68, 22 L. R. A. (N. S.) 243; Adams v. State, 52 Tex. Cr. R. 13, 105 S. W. 197; Boatright v. State, 42 Tex. Cr. R. 443, 60 S. W. 760.

We also think the newly discovered testimony is of the character and kind which presents error in the ruling of the court. As before s-aid, the age of the girl became and was a most material issue in the case. The testimony of the prosecutrix, her two sisters, and her mother would make her under 15 years of age. The testimony of Quincy Eubanks, John Hopkins, and Ida Hopkins would all make the prosecuting witness 17 years of age. They are all related to appellant, as were the witnesses who testified to her being under 15 years related to the prosecutrix. Appellant in his motion for a new trial swears that he did not know that the prosecutrix had ever been to school to G. W. Lanere, and first learned this fact during the trial of the cas-e by the testimony of the prosecuting witness and her mother. They show that Lanere had left Up-shur county some eight years prior to this trial, and they could not ascertain his present location during the trial. That since the trial they had located Lanere in Bowie county, and files the affidavit of Lanere that the prosecuting witness went to school in 1904, and she was 7 years of age at that time. The testimony of her mother would make her only 3 years old at that time, and hardly within the scholastic age, nor of an age likely to attend school. If Cyrinia was 7 years' old in 1904, she would be 17 in 1914, as contended by appellant’s witnesses. The affidavit of Etha Robison is also attached to the motion for a new trial, and she swears that Cyrinia AVallace attended school in 1904, and that she has known Cyrinia AVallace all her life and associated with her; that they had been raised together. That she, Etha Robison, was 16 years of age, and 'Cyrinia was older than she; that Cyrinia had told her she was a year older than the witness. The affidavit of Mary Tillman is also attached, and she swears that she is a midwife, and that she had been intimately acquainted with the family of Haza AVallace; had known Haza for 36 years; that she knows the age of Cyrinia AVallace, and she is 17 years of age.

None of these witnesses are related to pros-ecutrix nor to appellant, and if they had been present at the time of the trial and so testified, it is probable a different result would have been obtained, for they tie their memory to other facts. Mary Tillman says Cyrinia was born in June, 1898, as contended by appellant on the trial of the case, and all these witnesses would make her 17 years of age at the time of the alleged rape. On the trial it was shown she was a large girl and weighed 144 pounds. The state desires the imprisonment of no one unless a crime has been committed, and this1 testimony would render it very uncertain any crime was committed, even if appellant was guilty of car-nel knowledge of the girl with her consent, which she testifies to, but which appellant most emphatically denies.

I will here state that Judge DAVIDSON and Presiding Judge PREND-ERGAST are of tiie opinion that sufficient diligence was not shown to authorize a new trial on account of the alleged newly discovered testimony, and that by the use of proper diligence it could have been discovered before the trial; but the writer entertains a contrary view. Judge DAVIDSON agrees that the other bills present error, and the case should be reversed, while Presiding Judge PRENDER-GAST is of the opinion that none of them present error and the case should be affirmed. He is of the opinion that as appellant inquired about the census of 1915, and proved by the census enumerator that Haza Wallace first gave the birth of Cyrinia at a date when she would have been 17 years of age in 1914, and after having her attention called to it she changed the date of birth to that given in the blank; that the census blank of 1915 became admissible. To this I do not concur. He also does not think the census blank of 1914 sufficiently proven up to have rendered it admissible, and that the bill in regard to the testimony of J. W. Sharp presents no error, the allegations in the bill, being insufficient and too vague and indefinite, and is a conclusion of the witness.

For the above reasons, without discussing the other matters, we are of the opinion the ease should be reversed and remanded for a new trial.
      <©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=^Éor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HERRERA v. STATE.
    (No. 3867.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Juey <&wkey;l2l — Venire—Failure to Summon.
    _ Where, after motion to quash the special venire in a criminal case because the return of the officer showed he had not summoned all the jurors issued for, and had stated no sufficient reason in the return why they had not been summoned, the sheriff was required to amend his return and show specifically why he had not summoned all, and, after the return was so amended, the court ordered an attachment to issue for such veniremen, overruling of the motion to quash the venire was proper.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 550; Dec. Dig. &wkey;121.]
    2. Constitutional Law <&wkey;2'50 — Juey <&wkey;58 —Juey Wheel Law — Constitutionality.
    The jury wheel law (Acts 30th Leg. c. 139), as amended by Acts 32d Leg. c. 82 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151), is not unconstitutional and void because it requires that in counties to which the law is applicable, those containing a city of 20,000 inhabitants or more, the lists of qualified jurors shall be taken from the tax list in the tax assessor’s office for the current year, while in other counties all males over 21 years of age are competent jurymen, since the classification of the Legislature is reasonable, in that it sub-serves the purpose of excluding- from the jury box the vagrant and semicriminal class of floating- population-, which appears only in cities and larger towns.
    [Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 711-713; Dec. Dig. <&wkey;> 250; Jury, Gent. Dig. § 266 ; Dec. Dig. <&wkey;5S.J
    3. Witnesses t&wkey;405 — Impeachment—Immaterial Issue.
    In a prosecution for murder, where a state’s witness testified that she felt bitterly toward defendant, she could not be impeached by evidence that she did not entertain such bitter feeling toward defendant for the reason testified to by her, the reason for her feeling toward defendant being utterly immaterial, while a witness cannot be impeached upon an immaterial issue.
    [Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. &wkey;405.]
    4. Criminal Law &wkey;>105G — Appeal and Er-Rok — Reservation oe Grounds oe Review.
    Where no exception was reserved to the charge as given, nor any special charge refused, the question- of whether the law as submitted to the jury was applicable to the -evidence is not an issue on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <&wkey; 1056.]
    5. Criminal Law <&wkey;1077 — 1Teiai^-Maeing-up Record.
    Where defendant, two days before overruling of his motion for new trial and pronouncement of sentence, filed affidavit that his case had been appealed, and prayed that the official stenographer be required to make out a statement of facts for him as a pauper appellant, the court committed no error in refusing to entertain the affidavit until after the motion for new trial had been overruled and sentence pronounced, since it could not be known- until then that an appeal would be necessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. <@=> 1077.]
    6. Criminal Law <&wkey;1077 — Appeal—Failure to Furnish Statement.
    Where, after his conviction of murder on second trial, defendant prayed that the official stenographer be ordered to make out a statement of facts for him, as for a pauper appellant, and the court thereafter, at defendant’s instance, made an order granting him 60 days in which to prepare and file a statement of facts, no further steps being taken thereafter by defendant to procure a statement, either by using the statement on the prior appeal to refresh his and his counsel’s memory, or by mandamus to the Court of Criminal Appeals to require the stenographer to do his duty_, defendant was not entitled to reversal of his conviction for failure of the trial court to order the stenographer to furnish a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. 1077.]
    7. Criminal Law <S&wkey;1077 — Appeal—Procu-ration oe Statement by Pauper Appellant — Duty oe Court — Statute.
    Where a defendant who has given notice of appeal files affidavit that he cannot pay for a statement of facts or give security therefor, as provided by Acts 32d Leg. c. 119, § 8, it is the duty of the court to make an order requiring the stenographer to make out a statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. 1077.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Augustine Herrera was convicted of murder, and lie appeals.
    Affirmed.
    Swearingen & Ward and Jno. H. Bickett, Jr., all of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the penitentiary. This is the second appeal in this case, the opinion of the court ou the former appeal being reported in 170 S. W. 719.

There are but four bills of exception in the record, the first contending that the court erred in refusing to quash the special venire summoned in the case, because the return of the officer showed he had not summoned all the jurors issued for, and no sufficient reason stated in the return why they had not been summoned. The record before us shows that when this motion was filed, on motion of the district attorney, the. sheriff was required to amend his return and show specifically why he had not summoned each of those whom he had not summoned. After this return was thus amended, for all those whom the return failed to show a legal reason for not summoning, the court ordered an attachment to issue for such jurors, and they must have been obtained, as no further complaint was made. Under such circumstances the court did not err in overruling the motion to quash on this ground. Appellant also moved to quash the venire on the ground that the jury wheel law is unconstitutional. In counsel’s brief and in able oral argument made before this court, counsel admits the validity of this law has been upheld by this court in a number of decisions. See Merkel v. State, 171 S. W. 738, where the authorities are cited. It is true that as to the act of 1907 there was a dissent filed to the holding that the law was valid, but in 1911 this law was amended (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151), and the grounds of the original dissent remedied, and since then this court and the civil courts have been unanimous in sustaining the validity of the law. Appellant, however, insists that the ground he here presents was not passed on in any of the many cases sustaining this law. His contention is that the act of 1911 is unconstitutional and void because the certain officers designated to place in the jury wheel the names of jurors were required to select from the lists of qualified jurors of such counties, as shown by the tax lists in the tax assessor’s office for the current year, the jurors for service in the district and county courts of such county, whereas, in all counties not placed under the provisions of the jury wheel law, all male persons over 21 years of age are competent, unless disqualified by the provisions of the law; that thus limiting the persons authorized to place the names in the jury wheel to those whose names appear on the tax lists constitutes an unlawful and unjust discrimination against defendants to be tried in counties where the jury wheel law is in force. In support of his contention he cites many cases, among them being the Ellis Case, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 660, wherein it was held by the Supreme Court:

“The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Eourteenth Amendment, and in all cases it must appear, not merely that a classification has been made, but also that it is based upon some reasonable ground — something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.”

The other authorities cited but emphasize this rule of law, and, as we accede to its correctness, we see no necessity to quote them. The jury wheel law in this state is made applicable alone to counties that now contain, or may hereafter contain, a city of 20,000 inhabitants or more. Now are there any reasonable grounds, outside of mere arbitrary classification, why under the-jury wheel law those to select jurors were limited to names appearing on the tax lists, while those to select jurors containing no such city are not so limited. If not, then appellant’s contention may be sound, but if in the opinion of the Legislature a reason existed for making the distinction, the law is not invalid. It is known that in the cities and larger towns there is a shifting, drifting population, whose names never appear on the tax lists, which is not found in the rural communities and smaller towns, and if it was the object and purpose of the Legislature to exclude this class from the jury box, we cannot say they had no authority to do so. It is generally a class that has not much interest in their state or government generally, and in this shifting, drifting population are found those who render crime much more general in the larger cities than in the rural communities. Common experience would teach us that" in the main that class would not only not constitute desirable jurors, but are not counted very desirable citizens. That some young men who may become of age during the year would be excluded from jury service during a short period of time would not render the law invalid, if it was found necessary to adopt the law to reach the objectionable class. There is no arbitrary classification, for the law applies alike to all counties of the same class, and we adhere to the opinion that the law is valid.

In the next bill, and the qualification of the court in approving the same, it is made to appear that Francisca Gleason, a witness for the state, had testified that from the inception' of the case she entertained a feeling of bitterness and animosity towards appellant, and had stated, in answer to questions, as a reason for so doing, that Luz Cmz had told her appellant had said “she was not a maiden” and “was not a lady.” It is thus seen that the witness admitted she entertained a feeling of bitterness and animosity towards appellant, and this was material. When she gave as a reason why she entertained this feeling that Luz Cruz had given her certain information, it would be immaterial whether or not Luz Cruz had given her the information, and the court did not err in so holding. A witness cannot be impeached upon an immaterial issue in the case. It is always material to prove interest, bias, motive, or animosity of a witness as affecting the weight to be given the testimony of the witness, but when she admits she entertains animosity, and in no manner seeks to deny it, the truth or falsity of the reason she gives why she entertains such a state of feeling would be immaterial — it is the state of feeling that is material.

The only other bill of exceptions in the record (outside of the one complaining that the court erred in overruling his motion for a new trial) is one in which appellant contends he has been deprived of a statement of facts without fault or negligence on his part. We will say here that the only ground this could be material on in this case would be the one in the motion for a new trial, in which he contends that the evidence is insufficient to sustain the verdict. There was no exception reserved to the charge as given, nor any special charge refused, so the question of whether or not the law was submitted to the jury as applicable to the evidence is not an issue on this appeal. As hereinbefore shown, this case was before us on a former appeal, and in that ease there was a full statement of the evidence then adduced, and if the evidence on this trial was similar, we would not hesitate to hold it amply sufficient to sustain the verdict. But if appellant has been deprived of a statement of facts without fault or negligence on his part the case should be reversed, for he is entitled to have this court pass on that issue under the evidence heard on this trial. The motion for a new trial was overruled on August 27th, and op the same day appellant was granted 60 days after adjournment of court in which to prepare and have filed a statement of facts in this cause. Before the overruling of the motion for a new trial, appellant, on August 25th, filed an affidavit, in which he stated that, his case having been appealed, he was without funds, and was not able to pay for a statement of facts or to give security therefor, and he prayed that the official stenographer be required to make out a statement of facts for him. How appellant knew on August 25th the court two days later would overrule his motion for a new trial is not made manifest by this record. Certainly the case had not been appealed on August 25th, and notice of appeal was not given until two days later, August 27th, when his motion for a new trial was overruled, and sentence pronounced against him on August 27th. No appeal would lie until this sentence was pronounced. Certainly the court would commit no error in refusing to entertain the affidavit until after the motion for new trial had been overruled an'd sentence pronounced, because it would not be known prior to that time whether or not an appeal would be necessary, and an appeal certainly would not lie- However, on the day the motion for a new trial was overruled, appellant’s counsel filed the following motion:

“Now comes the defendant, Augustine Herrera, and represents to the court, his case having been appealed, that he is without funds and is unable to pay for a statement of facts, all of which is more fully shown by the affidavit of defendant, filed on the 25th day of August, 1915, to which reference is hereby made. Wherefore he prays the court that the official stenographer be ordered to make out a statement of facts in duplicate in this cause and to deliver them as provided in article 846 of the Code of Criminal Procedure.”

There is no order or judgment entry made on this motion in the record before us, if any was ever made. Certainly if this motion was presented to the court and he made any order thereon, the record should show such order was entered in the minutes of the court. However, in a bill of exceptions it is stated the court overruled defendant’s said motion and declined to make an order requiring the stenographer to make out a statement of facts, to which ruling of the court defendant excepted, which bill is approved by the court without qualification, yet the court on that day, August 27th, did make an order, granting 60 days in which appellant could prepare and have filed a statement of facts at appellant’s instance. No further steps were ever taken after this, the 27th day of August, by appellant to obtain or have filed a statement of facts in this cause, other than to get his extension of time. Why he should desire an extension of time is not shown, if no other effort was to be made, for the bill of exceptions discloses that at this time the court stenographer had refused to make out the statement of facts without pay, and the court had refused to make an order requiring him to do so. As said before, there was a complete statement of facts made, agreed to, and filed on the former appeal in this case, and why appellant and his counsel could not take that statement of facts, and with it to refresh their memory, make out, and have filed a statement of facts on this trial is not manifest to us. The Code specifically authorized them to make out a statement of facts, as was formerly done, and present it to the court. This they did not do, although granted 60 days in which to do so. After the court had overruled their motion, without taking other action, they come now and ask us to reverse the case because appellant has been deprived of a statement of facts without fault or negligence on his part. It seems to us that there was legal negligence at least; for this court has held that, if the stenographer refuses to make out a statement of facts, and the court refuses to require him to do so, upon application to us we would issue the necessary process to require the stenographer to mate .out and file a statement of facts in those instances that the law requires him to do so. Burden v. State, 70 Tex. Cr. R. 849, 150 S. W. 1190. No reason is assigned why appellant, during the time allowed by the court and the time allowed by law, did not apply to this court for an order requiring the stenographer to make out a statement of facts. He says the trial court refused to require the court stenographer on August 27th to make out a statement of facts, yet he takes no further steps to obtain a statement of facts, when we had plainly in the Burden Case indicated the steps necessary to be taken by him, after the jurisdiction of this court had attached by haying notice of appeal entered of record. This was done August 27th, and at any time thereafter, upon application to this court, the necessary orders would have been made, requiring the stenographer to make out a statement of the facts adduced on the trial. But appellant takes no action in the premises, and now desires that we reverse the case. Trials are expensive; they take up the time of the court, the jurors, and the witnesses, and the witnesses, at least, who must attend court without pay, have rights as well appellant. We always regret to have a record come before us without a statement of facts; for, in those cases in which the law provides an appeal may be prosecuted, it is his right under the law to have a correct record presented to this court and, if he has not been given that fair and impartial trial guaranteed to him by law, have his case reversed and a new trial granted. Soon after the adoption of the stenographer’s law, this court had the question before it, if appellant filed an affidavit of his inability to pay for a statement of facts, this would be all the diligence required! by the law, and it was held by this court in Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229, following the rule established by the civil courts, that this was not diligence, but application must be made for a writ of mandamus to require the stenographer to do his duty, and if this was not done, appellant would not be entitled to a reversal of his case. And, following the rule thus established, in the Burden Case, supra, we held that if the trial court did not do his duty, application should be made to this court, and we would require the stenographer to do his duty, and if a statement of facts could not thus be obtained, the case would be reversed. No such showing being made in this case, no application having ever been made to this court, at any time to issue a writ, diligence has not been used by appellant to obtain a statement of facts, and he is not entitled to a reversal of the cause.

While not necessary to a decision of this case, we will say that when the affidavit has been filed by one who has given notice of appeal that he is unable to pay for having made out a statement of facts by the stenographer, or to give security therefor, it is the duty of the trial court, upon the refusal of the stenographer to comply with the law, upon application to compel the stenographer to do so. It may be insisted that a laborer is worthy of his hire, and no man ought to be compelled to do work for which there is no compensation provided, but whenever a stenographer accepts the appointment as official court stenographer, he does so under the law, and he must assume its burdens as well as accept its benefits. He is paid $5 per day for each and every day he may attend upon the court, and in addition thereto he is permitted and authorized to make an extra charge of all litigants who are able to pay for a transcript. But the law will not and does not close its door to the poor and indigent. They are entitled to their day in court — to have their wrongs, if any they have suffered, corrected and justice meted out to them, no matter how poor they or he may be. Lawyers, sheriffs, clerks, stenographers, and all officers of the court are required by law to perform certain duties without pay, when a defendant or other litigant is unable to pay. If the stenographer, when this affidavit is filed, thinks it does not truly state the facts, he may file a contest, giving reasons why he thinks the affidavit does not state the facts, and if he does so, the court should hear evidence and determine the issue. If no contest is filed, it is the duty of the court, whenever the affidavit is filed, as provided in section 8, e. 119, of the Acts of the Thirty-Second Legislature, to make an order, requiring the court stenographer to make out a statement of facts, and see that this order is complied with. If the trial court will not do so, and after the jurisdiction of this court has attached the facts are made known to this court by affidavit and proper application, we will require the stenographer to do his duty.

The judgment is affirmed.
      ®r»Eor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    MOORE v. STATE.
    (No. 3640.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Husband and Wife <&wkey;302 — Abandonment after Seduction — Penaíties.
    Where defendant, having seduced a girl, subsequently married her when called upon to do so by her father, and without knowledge that a prosecution had been begun against him for the seduction, and without indictment or arrest, even though he thereafter willfully abandoned her, he could not be guilty of the offense of abandonment after seduction under Pen. Code 1911, art. 1450, providing that if, after seduction and commencement of prosecution therefor and before defendant pleads to the indictment, he marries the woman, and then abandons her, he shall be imprisoned, since knowledge of the prosecution and marriage to avoid it is an essential element of the offense.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 634; Dec. Dig. &wkey;>302.]

      2. Husband and Wife &wkey;?304 — Desertion— Willful Abandonment — Inability to Support.
    Under Acts 33d Leg. c. 101, making it a misdemeanor to desert, abandon, and fail to support the wife, defendant was not guilty of desertion if he left his wife only for the purpose of going where he could earn a living, intending to send for her later, and he gave her all the money he had at the time of the marriage; inability to support alone not being sufficient to make out the offense.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 636; Dec. Dig. <&wkey;304.]
    3. Husband and Wipe <&wkey;313 — Abandonment — Prosecutions — Evidence — Admissibility.
    In a prosecution for abandonment after marriage after seduction, where defendant’s evidence was that, owing to his inability at the time of the marriage to support his wife, it was agreed between him and his father-in-law that she should remain in her home until the next fall, it was error to exclude the statement of the father-in-law that he did not expect defendant to take his wife and support her for some time; that fact being material to the defense as showing a want of abandonment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 671-676; Dec. Dig. &wkey; 313.]
    4. Husband and Wipe <&wkey;314r — Abandonment after Seduction — Requisites of Offense.
    In a prosecution for abandonment after marriage after seduction, the jury should be instructed that, if defendant went away under an agreement between his and his wife’s families, only in order to provide means to support his wife, she to remain with her father until defendant could support her, he was not guilty.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 676-678; Dec. Dig. &wkey; 314.]
    6. Husband and Wife <&wkey;31&wkey;DESERTioN— Abandonment after Seduction.
    Pen. Code 1911, art. 1460, .providing the penalty for abandonment of the wife after seduction, and Acts 33d Leg. c. 101, making wife desertion a misdemeanor, eftnnot be concurrently applied to the same matter, being for different purposes, and failure of the court to so inform the jury in a prosecution for abandonment under article 1450 is error.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 676-678; Dee. Dig. <&wkey;>
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Grady Moore was convicted of abandoning Ms wife after seduction under article 1450, ■Pen. Code 1911, and he appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under an indictment charging him with abandonment of his wife after seduction under article 1460 of the Penal Code of 1911.

One of the serious contentions of appellant is that he was indicted under the wrong statute, and, if he is not correct in this proposition, that under the facts there were serious errors committed in the charge to the jury and in the admission and rejection of testimony. The uncontroverted evidence shows appellant had intercourse with the girl Bertha Wimberly, and from this intercourse she gave birth to a child. There were several acts of intercourse, commencing along say in March, and ending about the 14th of August. The child was bom the following year. After the intercourse, and some time prior to the birth of the child, there was a conversation between appellant and the girl, in which she notified Mm that she was not definite, but did not believe she was pregnant. Without going into a detail of the matters, Ms financial condition was such that he could not make a living where he was, and made arrangements with his father to take a pair of mules he had bought and assume his outstanding indebtedness on the mules; he having already paid $60. He went away seeking work. On the 30th of January, before the child was bom later in the spring, the father of the prosecutrix filed a complaint in the justice court charging appellant with seduction of his daughter, Bertha. Shortly after this occurred appellant’s father had an interview with the father of Bertha Wimberly with reference to the matter, and it was understood between them that the father of appellant would get in communication with his son, who would return and marry the girl. This seems to have been satisfactory all around. The father of appellant wrote to the boy to come home and marry the girl. The boy promptly responded, and on the 17th of February there was a conversation and agreement reached that the boy was to marry the girl, and on the following day he did marry her. There is also an issue on the fact as to whether appellant was aware of the filing of the complaint against him before he married the girl. The great preponderance of the evidence, as we understand the record, is he was unaware of that fact, though there is testimony from which the jury might conclude he had some knowledge of the filing of the complaint before he married the-girl. It is undisputed that the girl was to remain with her father for some time after the marriage until appellant could make arrangements for a home to which to take the girl, all parties understanding that he was practically penniless and had no means of supporting the girl and no home. The father of the girl occupied a house of four rooms, having several children. The father of the defendant occupied a house with two rooms, having six children. The boy undertook to make arrangements to carry the girl to his father’s house, but objection was urged on account of the smallness of the house, and the father of the girl testified he was willing for his daughter to remain at his house. He says, however, there was no definite time fixed for her so remaining, but for a convenient or necessary time, or words to that effect. Appellant’s side of the case was that she was to remain there until the following fall, the marriage having occurred on the 18th of February, by which time he expected to make arrangements to take care of and support her in a home of their own. When he was married he had $10.15, $10 of which he gave the girl. It is an undisputed fact that he did not remain with the girl after he married her, and that they did not reside together. This it seems was under the agreement ¿ireviously made. Some time after being married, there being nothing for him to do, and no way to make a living in the neighborhood, he went away to seek employment. He seems not to have been very successful. In the meantime he wrote his wife several letters. Most of these she ignored; at least did not answer. She wrote him on one or two occasions ; the letters being rather caustic. These letters entered into the theory of the state as some evidence of the fact that he had abandoned his wife. It perhaps may be unnecessary to make more than the above statement; the record being rather voluminous in regard to the facts.

Without taking the matters up as technically and critically as presented, we are of opinion that appellant’s contention is correct that the court was in error in not charging the jury that, if appellant married the girl without knowledge of the fact that prosecution had been begun by complaint and information, he would not be guilty of deserting his wife under the terms of article 1450 of the Penal Code. In order to make a party guilty of abandoning his wife after seduction, it must be after the prosecution has been begun. That a complaint has been filed is not sufficient, unless appellant is aware of that fact and marries the girl to avoid the consequences of the prosecution. This question' is in the case, and is presented both from the criticism of the indictment and the failure of the court to submit the issue. Appellant’s testimony shows clearly and beyond any question that he was not aware of the fact that a complaint had been filed or warrant of arrest had been placed in the hands of the officers at the time he married, and he did not know it for some time afterward. As a matter of fact, this record shows that he was never arrested at any time. The following grand jury failed to indict him. Later on and subsequently the grand jury indicted him. His father, having been informed of that fact, obtained a blank bond, had it filled out, and sent to the boy, who was in a 'distant county. He gave bond, which was approved by the sheriff of the venue county. So, as a matter of fact, he was never arrested.

There is another statute enacted by the Thirty-Third Legislature (page 188) making it a misdemeanor offense to desert and abandon and failure to support his wife. If appellant married the girl before he was aware of the prosecution, he would not be amenable under article 1450, but, if he subsequently, after marrying the girl, deserted and failed to support her, he might be guilty under the act of the Thirty-Third Legislature, supra. But, in order to constitute him guilty under that statute, desertion and failure to support must be willful and intentional. I-Iis inability to support his wife would not of itself subject him to punishment, as decided in Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166. Prom any viewpoint, then, whether the indictment was sufficient or was not sufficient, the issue was sharply made that appellant married the girl without any knowledge on his part that a prosecution had begun against him for seduction. This issue should have been submitted to the jury. The writer does not believe the indictment sufficient, but, be that as it may, the issue is sharply made on the other question, and it was brought to the attention of the court properly, and the question timely reserved and presented. This seems to be rather the keynote to the case on its real merits.

The court should have permitted Wim-berly, father of prosecutrix, to answer the question propounded by appellant’s counsel, to the effect that he did not expect Grady Moore, the defendant, to take his wife for some time. The witness would have answered if permitted, that he did not expect defendant to take his daughter for some time after marriage, and that he expected to keep her himself for some time after such marriage. This was important testimony to the defendant. He was charged with desertion of his wife. This was a matter of fact somewhat cumulative of other testimony, but admissible. He was the father of the prosecutrix. There was an issue between the state and the defendant on this question, defendant’s evidence clearly showing that the father of prosecutrix was to keep the girl until the following fall, by which time appellant expected to be ready to have a place or home for his wife. This was somewhat controverted as to the length of time, the state making the time indefinite, by its contention, in which the girl was to remain at her father’s home. From this view of the case this evidence coming from the father of the prosecutrix would have been of materiality to show a want of desertion on the part of appellant; in fact, the evidence would seem to indicate that there was no purpose on the part of appellant to desert his wife at that time, and, if there was anything like a definite purpose manifested, it was later on and growing out of a spicy correspondence between appellant and his wife, in which she may have been as much or more to blame than was appellant about his not returning.

There were several charges asked and refused, and objections to the court’s charge as given, which we deem unnecessary to follow seriatim. In a general way it is sufficient to state that the issues were presented to the court as the law of the case, and not submitted to the jury; that, if appellant went away under agreement between the families and his wife and himself that the separation was not to be a permanent one, but only that he might go away and prepare means for supporting his wife, and that she was to remain with her father until that time, he would not be guilty under that aspect of it; it should be a desertion on his part, and willfully so; that a temporary separation with the ultimate design of reuniting at the proper time and under appropriate circumstances would not constitute abandonment. We think this proposition is clear, and should have been embodied in the charge, and the jury so instructed. It is also a general proposition, without going over all the charges and exceptions with reference to ■the matters, that, if the abandonment was not with reference to the seduction, and he was ignorant of the fact of such a prosecution having begun, but he deserted his wife and failed to support her or the child, he would not be guilty under article 1450, but under the act of the Thirty-Third Legislature (page 188) supra. These matters were all in the case, made by the testimony, as Issuable facts and propositions, and should have been fairly submitted to the jury. It is not every desertion or abandonment that is criminal. If appellant married the girl knowing of the pendency of the-prosecution-against him for seduction, and to avoid the consequences of such prosecution, he might ■or could be guilty under article 1450 of the Penal Code, but, if he was not aware of it, ■and did not know that prosecution had been ■begun, he certainly could not be chargeable with a fact of which he was ignorant, and held under the statute, which means an intentional desertion of his wife after seduction. If he was ignorant of the fact that he was being prosecuted, he could not have married for the purpose of evading a pros■ecution, because there was to him no such prosecution.

The two statutes, article 1450 and the ■act of the Thirty-Third Legislature, supra, seem to carry with them some distinguishing mark so as to prevent them occupying the same territory about the same matter at "the same time. Article 1450 evidently means and was enacted for the purpose of of punishing a man who seduces a girl and after prosecution begun against him married her to avoid the consequences of the seduction ■statute and its punishment. The other article provides that after a man has married and he deserts or fails to support his wife .and child, either or both, he should be guilty and punished as a misdemeanor. These two statutes were enacted for different purposes, and were not intended to be in conflict with each other, and by reason of the language expressed in them carry different purposes, one with reference to avoid the consequences of seduction, and the other to punish a man who deserts his wife and fails to support her. These two matters, as I have stated before, are raised in this case. The court did not so inform the jury. The matters are properly presented.

For the errors discussed, the judgment is reversed, and the cause remanded.
      i@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LAWSON v. STATE.
    (No. 3856.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    S. E. Lawson was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; her punishment being assessed at two years’ confinement in the penitentiary.

This record is before us without a statement of facts or bill of exceptions. There is nothing, therefore, in the record requiring review or decision.

The judgment is affirmed.


author: SPEER, J. BUCK, J.

text:
    KINCAID v. TANT.
    (No. 7923.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 4, 1914.
    On Rehearing, Nov. 13, 1915.)
    1. Exchange cur Property &wkey;>3 — -Contracts —Rescission—Fraud .
    Where defendant materially misrepresented the character and quality of his land, and plaintiff believed and relied thereon, and would not have entered into a contract for the exchange of lands but for them, the representations were ground for relief by rescission in a court of equity; in such case it is the actual misrepresentation of the lands that constitutes the gist of the action, and it is immaterial whether the representations are fraudulent or made through mistake, or that defendant told plaintiff he had never seen the land.
    [Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. <&wkey;>3.]
    2. Exchange op Property <&wkey;13 — Cancellation — Instructions.
    In a suit to rescind a contract for the exchange of .lands and to cancel a deed executed by plaintiff to defendant, on the ground of fraud and mutual mistake, as to the character of defendant’s land, a charge that if all of defendant’s representations as to each and all of the lands were true the verdict should be for him, was not objectionable as placing too great a burden on him, and as calculated to mislead the jury.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 25-29; Dec. Dig. <&wkey;> 13.]
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Action by J. D. Tant against W. H. Kin-caid. Judgment for plaintiff, and defendant appeals. •
    Affirmed.
    Chapman & Coombes, of Anson, for appellant. J. W. Boynton, of Anson, for appellee.
   SPEER, J.

J. D. Tant instituted this suit in the district court of Jones county against W. H. Kincaid for the rescission of a contract for the exchange of lands and for a cancellation of a deed executed by him and his wife to the defendant in conformity therewith; the ground of the attack being fraud and mutual mistake as to the character of the defendant’s lands. There was a trial before a jury resulting in a verdict in favor of the plaintiff on the issue of mutual mistake, and judgment was rendered accordingly, and the defendant has appealed.

Most of appellant’s assignments of error, notably 1 to 7, present in one form or another the proposition that equity will not relieve on the ground of mutual mistake a purchaser of land where equal information touching the nature, quality, and value thereof was possessed by both parties, and the vendor acted with entire good faith, although the land may in fact be inferior in grade and much less valuable than the parties believed it to be. We cannot sustain this contention.

Without detailing the evidence it is sufficient to say the testimony of appellee supports the finding of the jury to the effect that appellant misrepresented in most material respects the character and quality of his lands, and that appellee believed and relied on the representations and would not have entered into the contract but for them. Representations of this character, even though innocently made, when thus acted upon by another afford that other grounds for relief in a court of equity. Buchanan v. Burnett, 52 Tex. Civ. App. 68, 114 S. W. 406; Maddox v. Clark, 163 S. W. 309. In such a case it is the actual misrepresentations of the thing sold that constitutes the gist of complainant’s cause of action, and it is immaterial whether such representations be fraudulent, or more charitably denominated mistake. In either event if the injured party mistakenly relies upon them he may have bis relief. Besides, in the present case there is nothing to show that appellee had an equal opportunity with appellant to know the real character of the lands in controversy. Neither can it make any difference that appellant told appellee he had never seen the lands, since the verdict supports appellee’s testimony that notwithstanding this appellant yet declared that they were just as he had represented them to be.

Appellant’s eighth assignment complains of the ninth (eighth) paragraph of the court’s charge upon the proposition that, “where the contract sought to be rescinded shows that the plaintiff had the option of accepting one of several combinations of lands, it was error for the court to instruct the jury to find for the defendant if they found the representations as to each and all of the lands were true, the same placing too great a burden on the defendant, and was calculated to mislead the jury.” This assignment is overruled for it is obviously true under the facts stated if all of appellant’s representations as to each and all of the lands were true that the verdict should be in his favor, and this is what the charge says. Neither is there any conflict between this paragraph (which appears to have been given inadvertently) and other parts of the charge given.

The verdict of the jury is supported by the evidence and there is no error in the record. The judgment is, accordingly, affirmed.

CONNER, C. J., not sitting.

On Rehearing.

BUCK, J.

The original opinion in this case was rendered April 4, 1914, and the judgment of the trial court affirmed. A motion for rehearing was filed in due time, and has been held under consideration since, pending action by the Supreme Court on two cases involving the same issue, to wit: Whether a definite and material representation of the condition and value of land exchanged or sold, which is relied upon by the other party and is proved to be untrue, affords grounds for rescission, though the party making said positive representation, at the time he made it, had not seen the land, and so stated to the other party. In the case of Maddox v. Clark, 163 S. W. 309, decided by this court, we answered the question in the affirmative. In this, it appeared we were in conflict with the Court of Civil Appeals for the Sixth District, as shown in Boles v. Aldridge, 153 S. W. 373. Writs of error were granted in both cases, and on April 28, 1915, the Supreme Court sustained our holding and affirmed the judgment rendered by this court (Maddox v. Clark, 175 S. W. 1053), and reversed the judgment of the Texarkana court (Boles v. Aldridge, 175 S. W. 1052).

In answer to appellant’s request, we include the further findings of fact:

(1) Appellee knew before he had executed the deed to his land traded, but not before he had executed the contract of exchange, that áppellant had not personally seen the land concerning which he had made the representation shown to be false. But he made such representation as a matter of fact, it was as to a material matter, and its truth was relied on by appellee, and the belief therein induced appellee to make the trade.

(2) Appellant disclosed to appellee, after the contract of exchange had been signed by both parties, but before the execution of the deeds of conveyance, that he, appellant, had never seen the land represented.

On the authority of the Supreme Court in these two cases, the motion for rehearing is overruled.

        iti — other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    Ex parte BEATY.
    (No. 3882.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.
    Rehearing Denied Jan. 12, 1916.)
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Application for bail on behalf of Robert Beaty. From a judgment denying bail, applicant appeals.
    Affirmed.
    E. B. Coopwood, of Lockhart, J. K. Freeman, of Cameron, and A. E. Holland, of Lul-ing, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from the judgment of the lower court denying bail.

We have carefully read and considered the statement of facts herein. In addition to a written brief by appellant’s attorneys, we also heard their forcible oral argument on the submission of this case, all of which we have duly considered, together with all the authorities cited by them.

We adhere to the rule in such cases not to discuss the evidence. We have, however, reached the conclusion that the judgment of the lower court should be, and it is, therefore, affirmed. Ex parte Sapp, 179 S. W. 109.


text:
    BEVERLY v. STATE.
    (No. 3861.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1915.)
    Appeal from District Court, Goliad County; John M. Green, Judge.
    Marshall Beverly was convicted of murder, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 40 years in the penitentiary.

There is no statement of facts, nor bill of exception. In the absence of these, no question is raised which we can review.

The judgment is affirmed.


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

text:
    Ex parte BORRER.
    (No. 3864.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Ex parte application by Will Borrer for writ of habeas corpus • to secure admission to bail. From an order denying bail, he appeals.
    Affirmed.
    E. B. Coopwood and J. B. Hatchett, both of Lockhart, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a hearing on habeas corpus before the district judge, who denied bail.

We have carefully read the statement of facts in this case. In our opinion, the district judge was justified in denying bail. As is usual, we do not discuss the evidence.

The judgment denying bail will be affirmed.

DAVIDSON, J.

(dissenting). I do not care to discuss the facts, and will not do so. I think the case clearly bailable. The Assistant Attorney General so thought, and agreed with relator’s counsel on bail in the sum of $15,000, which is of record among the papers.

I think he was and is right.


text:
    SHOOK v. STATE.
    (No. 3871.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    Appeal from Criminal 'District Court, Harris County; C. W. Robinson, Judge.
    Jim Shook was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for burglary. There is no statement of facts, nor bill of exceptions, and nothing raised which can be reviewed.

The judgment is affirmed.