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23 Tex. App. 100, 5 S. W. 99. The rule in this may be evident, though there may be conflicting state for determining whether or not bail should testimony. Ex parte Smith, 23 Tex. App. 125 be granted is as follows: 'If the evidence is [5 S. W. 99]; Drury's Case, 25 Tex. 45. Proof clear and strong, leading a well-guarded and is evident,' if the evidence adduced on an applidispassionate judgment to the conclusion that cation for bail would sustain a verdict convictthe offense has been committed, that the ac- ing the applicant of murder in the first degree. cused is the guilty agent, and that he would Foster's Case, 5 Tex. App. 625 [32 Am. Rep. probably be punished capitally if the law is 577].” administered, bail is not a matter of right. Ex parte Smith, 23 Tex. App. 126 [5 S. W.
In Ex parte King, 56 Tex. Cr. R. 68, 118 S. 102]. Stated in another form it is thus laid W. 1032, this court, by Judge Ramsey, said: down: 'If, upon the whole testimony adduced, "The testimony introduced on the part of the the court or judge entertains a reasonable doubt state is amply sufficient, if true, to show that rewhether the relator committed the act, or wheth- lator is guilty of murder in the first degree. er in doing so he was guilty of a capital crime, His defense consists of proof of alibi, and also bail should be granted. Same authority. “This involves to some extent an attack and impeachrule applies when the case is considered on ap-ment of the state's witnesses. The case is pepeal, the court keeping in mind the prima facie culiarly one of fact, and in respect to a matter legal presumption that the action of the trial of this sort, as we view it from the statement of judge was correct.' (Italics added.) Same au- the evidence contained in the record, the judgthority. "To the mind of the tribunal passing ment of the trial court should not be set aside upon the evidence the guilt of the applicant of where there is proof showing the defendant's a capital offense may be evident *** and guilt to be evident. We are not prepared to say yet there may be evidence in conflict with such the action of the court below was without ample inculpatory evidence. It is not all conflicting, warrant, and without comment on the testiexculpatory evidence that will have the effect to mony we deem it our duty to affirm the judgraise a reasonable doubt of guilt and destroy or ment of the court below, which is here done.” impair the force of “evident proof” made by inculpatory evidence. Same authority.”
That case is specially and peculiarly apIn Smith v. State, 23 Tex. App. 125–127, 5 plicable to this. See, also, Ex parte Cabrera, S. W. 102, cited by Judge Davidson, it is 53 Tex. Cr. R. 466, 110 s. W. 898; Ex parte
Brown, 63 Tex. Cr. R. 613, 614, 140 S. W. said the rule is:
"If the evidence is clear and strong, leading 1191; Ex parte Finney, 70 Tex. Cr. R. 284, a well-guarded and dispassionate judgment to 156 S. W. 636. As said by Judge Ramsey in the conclusion that the offense has been commit- King, supra, so we say in this case: ted, that the accused is the guilty agent, and “We are not prepared to say the action of that he would probably be punished capitally the court below was without ample warrant, if the law is administered, bail is not a matter and without comment on the testimony we deem of right."
it our duty to affirm the judgment of the court And further :
below, which is here done." This rule "is, as we understand it, in harmony with the constitutional requirement that bail shall be granted unless the proof is evident. It is, in effect, the same rule stated as a cor- LOOPER V. STATE. (No. 3650.) rect one in Bridewell's Case, 57 Miss. 39, but (Court of Criminal Appeals of Texas. June 25,
is“ whole testimony adduced, the court or judge en
1915. Rehearing Denied Oct. 13, 1915.) tertains a reasonable doubt whether the re- 1. CRIMINAL LAW 1114-APPEAL AND ERlator committed the act, or whether in so doing ROR-QUESTION PRESENTED-SUFFICIENCY OF he was guilty of a capital crime, bail should be EVIDENCE granted.' This rule applies when the case is
Where, on appeal from a conviction of considered on appeal, the court keeping in mind crime, there were no bills of exception in the the prima facie legal presumption that the ac-record, no complaints as to the charge of the tion of the trial judge was correct. A majority court, and no special charges requested below, of the court are not to be understood as hold the only question presented was the sufficiency ing that under the operation of this rule the of the evidence to sustain the conviction. evidence, though conflicting, may not at the same time be evident. To the mind of the tri-Law, Cent. Dig. $$ 2918, 2921; Dec. Dig. Om
[Ed. Note.-For other cases, see Criminal bunal passing upon the evidence the guilt of
1114.] the applicant of a capital offense may be evident—that is, clear, strong, not admitting of a 2. VAGRANCY O3 SUFFICIENCY OF EVIreasonable doubt-and yet there may be evi- DENCE. dence in conflict with such inculpatory evidence.
In a prosecution for being an idle person It is not all conflicting, exculpatory evidence without visible means of support, evidence held that will have the effect to raise a reasonable to support conviction. doubt of guilt, and destroy or impair the force [Ed. Note. For other cases, see Vagrancy, of 'evident proof' made by inculpatory evidence. Cent. Dig. $ 3; Dec. Dig. Om3.] It is for the judge or court who hears the testimony to consider the evidence as a whole, and
Appeal from Johnson County Court; B. if by the entire evidence a reasonable doubt of Jay Jackson, Judge. the applicant's guilt of a capital offense is not
Jake Looper was convicted of being an idle generated, the proof is evident, and bail should be denied.”
person without visible means of support, and In Ex parte Jones, 31 Tex. Cr. R. 445, 20 he appeals. Affirmed. S. W. 983, this court, by Judge Simkins, W. B. Featherston, of Cleburne, for appelagain said:
lant. C. C. McDonald, Asst. Atty. Gen., for “Bail should be granted in murder cases un- the State. less, upon examination of all the evidence adduced, the court should conclude that the proof
HARPER, J. Under a complaint charging of guilt is evident, and the accused would be convicted of murder in the first degree if the him with, on or about January 1, 1915, and law was administered. The guilt of the accused I continuously up to the time of filing the comTex.)
VAN DYKE v. STATE
plaint, February 19th, being then and there Appeal from Johnson County Court; B. an idle person, the appellant being an able Jay Jackson, Judge. bodied person, who habitually loafed and Henry Sloan was convicted of violating loitered about the streets of Cleburne, hav- the prohibition law, and he appeals. Afing no regular employment and no visible firmed. means of support, appellant was convicted.
W. B. Featherston, of Cleburne, for appel[1, 2] There are no bills of exception in lant. C. C. McDonald, Asst. Atty. Gen., for the record, no complaints as to the charge the State. of the court, and no special charges were requested. So the only question presented
HARPER, J. Appellant was convicted of is the sufficiency of the evidence. W. M. violating the prohibition law in Johnson Battle, A. C. White, Jim Hughes, Emmett county and his punishment assessed at imDillard, Bob Ewing, and Lee Bizzell testify prisonment in jail for thirty days and a fine to facts which fully support the allegations
of $25. in the complaint. As a defense appellant re
 The evidence is amply sufficient to suslies on the fact that he owned a home in tain the verdict, as Warren Clark testifies Cleburne valued at $400, two vacant lots, he purchased a bottle of whisky from him value not given, and some other property, about the 10th day of February, 1914, and value not given. None of them are shown None of them are shown paid him 50 cents for it.
paid him 50 cents for it. Appellant introto produce any revenue, or that he has any duced evidence tending to show that he was income therefrom. If the testimony would
on the county road in Johnson county, workshow that appellant had visible means of ing out a fine from February 4, 1914, until support, or an income sufficient to support March 4, 1914. However, the judgment inhimself, wife, and children, we would agree troduced by him states the judgment of conwith appellant that the provisions of the law viction was had on March 10, 1914. In adunder which he was indicted did not reach dition to this Warren Clark testified that he his case. But, as no such showing is made, knew when appellant went on the road, and we cannot say that the jury, with the law he purchased the whisky a little while before properly presented to them in the charge, he went on the county road. was not authorized to return the verdict they
[2, 3] Appellant insists that the court erred did.
in authorizing a conviction for any period The judgment is affirmed.
of time two years prior to February 14, 1914, when he should have counted the time with
in two years prior to the filing of the indictSLOAN v. STATE. (No. 3649.)
ment in this case. Appellant's contention is (Court of Criminal Appeals of Texas. June 25, the alleged sale may have been any time
correct, and if the evidence suggested that 1915. Rehearing Denied Oct. 13, 1915.)
prior to two years before the filing of the 1. INTOXICATING LIQUORS Om236–PROHIBI- indictment, his contention would be ground
TION LAWS - VIOLATION - SUFFICIENCY OF for reversal of the case. But, as the evidence EVIDENCE.
and all the evidence shows that if a sale was In a prosecution for violating the prohibi-made, it was made within less than two years tion law, evidence held sufficient to sustain a prior to the return of the indictment, the conviction.
[Ed. Note.--For other cases, see Intoxicating assignment presents no ground for reversal.
PROSECUTION-COMPUTATION OF TIME FROM
VAN DYKE v. STATE. (No. 3591.) In a prosecution for violating the prohibition law, a conviction could only be had for (Court of Criminal Appeals of Texas. June 9, an offense committed within two years prior to
1915. On Motion for Rehearing, the filing of the indictment.
Oct. 13, 1915.) [Ed. Note.-For other cases, _see Criminal 1. CRIMINAL LAW Omw 1092, 1099-APPEALLaw, Cent. Dig. $8 271, 272; Dec. Dig. RECORD-TIME FOR FILING STATEMENT AND 147.]
BILLS OF EXCEPTION. 3. CRIMINAL LAW Ow1172-APPEAL AND ER
Where the statement of facts and bills of ROR-HARMLESS ERROR-MISCHARGE As To exception were filed after adjournment of court
without an order for that purpose, such papers LIMITATION OF PROSECUTION.
Where, in a prosecution for violating the will not be considered. prohibition law, the court erred in authorizing
[Ed. Note. For other cases, see Criminal à conviction for the commission of the offense Law, Cent. Dig. $$ 2803, 2829, 2834–2861, other than within two years prior to the filing 2866–2880, 2919; Dec. Dig. Om 1092, 1099.] of the indictment, all the evidence nevertheless showing that, if a sale was made at all, it
On Motion for Rehearing. was made within less than two years prior to 2. CRIMINAL LAW m1092, 1099 – APPEAL the return of the indictment, the error was AND ERROR RECORD TIME FOR FILING harmless.
STATEMENT–BILLS OF EXCEPTION-STATUTE. [Ed. Note. For other cases, see
see Criminal Code Cr. Proc. 1911, art. 845, regulating Law, Cent. Dig. $$ 3128, 3154-3157, 3159-3163, the filing of statement of facts and bills of excep3169; Dec. Dig. Omw1172.]
tion when the appeal is taken from a judg
ment of conviction in a district or county court, insists we were in error in not considering does not authorize such papers to be filed after his statement of facts and bills of exception, adjournment of court, whether there was an referring us to the act of 1911, art. 845, of order entered to that effect or not.
[Ed. Note.-For other cases, see Criminal the Procedure as authority authorizing such Law, Cent. Dig. $$ 2803, 2829, 2834–2861, papers to be filed whether there was an order 2866–2880, 2919; Dec. Dig. Om 1092, 1099.] entered or not. In view of the numerous de3. CRIMINAL LAW Om 1092, 1099 APPEAL cisions holding to the contrary, and that
AND ERROR RECORD TIME FOR FILING that law did not apply to county court cases, STATEMENT AND BILLS OF EXCEPTION-OR- and only applied to the stenographer's act, DER OF COURT.
Where, on appeal, the clerk of the trial the statement of facts and bills of exception court sent up a certificate showing that the cannot be considered. It is deemed unnecescourt entered upon its private docket, "Defendant's motion having been this day overrul- sary to cite these cases. ed, and he having given notice of appeal, and
 The clerk sends a certificate showing his bond fixed at $700, defendant asked and that the court entered upon his private dockwas granted the time provided by law in which et the following: to file his statement of facts,” such order not carried forward into the minutes of the court,
"Defendant's motion having been this day overdoes not authorize the filing of statement of ruled, and he having given notice of appeal, and facts and bills of exceptions after adjournment his bond fixed at $700, defendant asked and of court.
was granted the time provided by law in which [Ed. Note. For other cases, see Criminal to file his statement of facts.” Law, Cent. Dig. SS 2803, 2829, 2834-2861,
This order was not carried forward into 2866-2880, 2919; Dec. Dig. Om 1092, 1099.] the minutes of the court, and therefore can4. CRIMINAL LAW Cm1121-APPEAL-QUES- not be considered. The writer was under TIONS REVIEWABLE-RECORD.
the impression that this court would be auWhere, in a prosecution for violating the local option law, motion was made to quash the thorized to consider such an order and coninformation and affidavit because the prohibition sider the statement of facts and bills of election in the county and the publication of the exception, but upon looking over the session result had not been in conformity with statute, acts fails to find that the Legislature enacted the court on appeal could not consider the question of the invalidity of the election in the absuch a statute. We find that the acts of the sence of evidence on the point.
last Legislature contain a statute to the [Ed. Note. For other cases, see_Criminal effect that where notice of appeal has been Law, Cent. Dig. $82938, 2939; Dec. Dig. given and not carried into the minutes, this Om1121.]
may be shown either in vacation or term Appeal from Scurry County Court; C. R. time, and the proper order entered, and it Buchanan, Judge.
shall be regarded as having occurred at the A. B. Van Dyke was convicted of violating time the notice of appeal was given, but the local option law, and he appeals. Af- statement of facts and bills of exception were firmed.
not included in that statute. We therefore Smith & Spiller, of Snyder, and W. A. cannot consider the statement of facts and Anderson, of San Angelo, for appellant. c. bills of exception. C. McDonald, Asst. Atty. Gen., for the State.  Motion was made to quash the infor
mation and affidavit because prohibition of DAVIDSON, J.  Appellant was charg- the sale of intoxicating liquors in the county ed with violating the local option law. There of Scurry is not in effect, for the reason are several interesting questions raised in that the election wherein the question was the motion for new trial and bills of excep-submitted to the voters of said county and tion, but the record is in such condition that the publication of the result thereof was not the statement of facts and bills of exception in conformity with the statute governing cannot be considered. All these papers were such election, as is shown by the records of filed after adjournment of court, without an the minutes of the commissioners court of order having been entered for that purpose; Scurry county. Without evidence of that at least the record is before us without an fact before us this question cannot be conorder authorizing the filing of statement of sidered. Where the validity of the election facts and bills of exception after adjourn is attacked, the evidence must show such ment of court. In this attitude of the record election to be invalid, and that the law was these papers cannot be considered, and the not in force. Whether this could be done questions suggested in motion for new trial on motion to quash or not it is not necessary and bills of exception cannot be revised. here to decide, but inasmuch as this court The judgment therefore will be affirmed. must presume that the election was properly
held in the absence of an attack on it, that On Motion for Rehearing.
question cannot under condition of this rec Just before the adjournment of the ord, be considered on motion to quash. It term of court in June last the judgment might come up in the evidence, and if the herein was affirmed. The statement of facts evidence showed there was no valid election, and bills of exception were filed out of term of course the evidence would not be suffitime, without an order of the court entered cient to support a conviction. There must be granting time for such purpose. Appellant) a law in force punisbing the offense, else a
TAYLOR V. STATE
conviction cannot occur. But as the matter that deceased reached for a pistol, a charge on is presented we cannot consider it.
self-defense should have been given. The motion for rehearing, therefore, will
[Ed. Note.-For other cases, see Homicide, be overruled.
Cent. Dig. $$ 614, 616-620, 622-630; Dec. Dig.
mm 300.] 8. HOMICIDE Om 300-PRINCIPALS-LIABILITY,
Where accused was charged as being a prinTAYLOR V. STATE. (No. 3595.)
cipal with his son, who actually did the killing, (Court of Criminal Appeals of Texas. June 9, he could not be convicted if he believed the 1915. Rehearing Denied Oct. 13, 1915.)
killing was necessary to their mutual safety,
or if the son so believed on reasonable grounds. 1. CRIMINAL LAW On 59—PRINCIPLES-WHO [Ed. Note.-For other cases, see Homicide, ARE.
Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. Mere presence, without participation in the 300.] commission of an offense, will not constitute one a principal, but presence, with other circum- Appeal from District Court, Smith Counstances, may be sufficient to show that such per ty; J. A. Bulloch, Special Judge. son was a principal. [Ed. Note. For other cases, see Criminal
J. B. Taylor was convicted of manslaughLaw, Cent. Dig. 88 71, 73, 74, 76-81; Dec. Dig. ter, and he appeals. Reversed and remm 59.]
manded. 2. HOMICIDE Om 281 EVIDENCE ADMISSI- Simpson, Lasseter & Gentry, of Tyler, for BILITY.
In a prosecution for homicide, evidence appellant. C. C. McDonald, Asst. Atty. Gen., that accused was a principal held sufficient to for the State. go to the jury.
[Ed. Note.-For other cases, see Homicide, HARPER, J. Appellant was indicted, Cent. Dig. $ 573; Dec. Dig. Om 281.]
charged with murder. When tried he was 3. HOMICIDE Omw 305 EVIDENCE INSTRUC- adjudged guilty of manslaughter, and his TIONS.
punishment assessed at two years' confineIn a prosecution for homicide, where it ap- ment in the penitentiary. peared that accused was the father of the one who fired the fatal shot, and that he had brought
The evidence in this case would show that with him the gun used in the killing, a charge the deceased, John Gilley, was a deputy sheriff that all persons are principals who are guilty and on the 24th of last December had arof acting together in the commission of an offense, and, when an offense has been committed rested some negroes living on Frank Taylor's by one and others are present, the criterion farm. While carrying them to Tyler, Jesse is, Did the parties act together in the commis- Taylor overtook the officers.
What then sion of the offense? and, if so, all are alike took place is a mooted question. The state's guilty, is erroneous under the circumstances.
[Ed. Note:--For other cases, see Homicide, evidence is that, when Jesse Taylor overtook Cent. Dig. 8 637; Dec. Dig. 305.]
the officers, he cursed and abused them, and 4. WITNESSES em 255
assaulted Mr. Broadwater, who was asEXAMINATION REFRESHING MEMORY.
sisting Deputy Sheriff Gilley. Broadwater's The memory of a witness may be refreshed testimony is that deceased, Gilley, struck by propounding questions to her and exhibiting Jesse Taylor on the head with a pistol, it to her her testimony given at the coroner's in-being accidentally discharged, killing Jesse quest.
[Ed. Note:- For other cases, see Witnesses, Taylor. Appellant and his other two sons, Cent. Dig. $8 870-890; Dec. Dig. 255.]
Frank and Willis Taylor, placed no 5. WITNESSES Om 321 EXAMINATION
fidence in this theory of the case, but from
what they heard they believed that Gilley Under Code Cr. Proc. 1911, art. 815, a had intentionally shot Jesse Taylor, when party introducing a witness may attack his he had committed no assault; that he had testimony when the facts stated by the witness are injurious to his cause, the state, when it in- followed Gilley and Broadwater to secure troduces a witness cannot attack the witness the release of the negroes, and had only rebecause, even after an attempt to refresh her quested their release, when words ensued, memory, the witness fails to recall matters tes- and Gilley shot Jesse Taylor in the back of tified to at the coroner's inquest; in such case there being no injury to the state's case.
the head. Without discussing further the [Ed. Note. For other cases, see Witnesses, evidence in regard to the killing of Jesse Cent. Dig. 88 1094, 1099, 1100; Dec. Dig. Taylor, or commenting thereon, the record 321.]
makes it evident that a bad state of feeling 6. CRIMINAL LAW Ow380 CHARACTER EVI- existed between deceased, Gilley, and BroadDENCE-ADMISSIBILITY.
water, on the one hand, and appellant and Where accused put his good character as a his two sons, Frank and Willis, on the other peaceable citizen in issue, testimony that it had been reported some 30 years before that he hand, up until the time Gilley was killed on killed a man in another state and was a member the morning of February 5th last. of a gang of outlaws is too remote to be con- Willis Taylor fired the shot that killed sidered.
Gilley. This is shown by all the evidence, [Ed. Note.-For other cases, _see Criminal
The Law, Cent. Dig. 88 843, 845; Dec. Dig. both for the state and defendant. 380.]
state sought the conviction of appellant on 7. HOMICIDE O 300—PRINCIPALS—WHO ARE. the theory that he was a principal in the
Where accused, charged as being a prin- commission of the offense. To sustain this cipal with his son, who shot deceased, testified i it showed that after the killing of Jesse Tay
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
lor by Gilley appellant purchased a box of that the person committing the act intends shotgun shells containing buckshot, and car- doing so. But knowledge in this instance ried his gun with him wherever he went. could be inferred if the jury should find that This is not denied by appellant, but he gives the state's contention is the correct theory; as a reason that he did so to defend him- that appellant had carried the gun to self, as he had been informed that Gilley Frank's, knowing Willis would be there; and Broadwater had said they would kill the that he perhaps had knowledge that deceased entire Taylor family. The state further Gilley and Broadwater would probably pass introduced evidence to the effect that after there that morning; that he could see Willis the killing of his son Jesse Taylor appellant watching the road; that when Gilley and had said to Travis Hanks that he believed Broadwater came in sight Willis had walked Gilley had murdered Jesse, and they could into the hall and called appellant, appellant not both live in the same community or immediately following him, and was with county. In addition to this, the state in Willis when he shot. These facts and cirtroduced evidence which would show that cumstances would support a finding that apthe grand jury was in session and were ex- pellant was a principal, and we would not amining into the facts relating to the killing disturb the verdict on that ground. Howof Jesse Taylor, Gilley having been bound ever, appellant complains of the charge on over to the grand jury for having killed who are principals. Jesse Taylor; that a subpoena had issued  In his main charge the court instructfor Broadwater summoning him to appeared the jury : before the grand jury on a given date; and
“Now, all persons are principals who are that appellant was in Tyler on the date guilty of acting together in the commission of an of the issuance of this subpoena.
On the offense.
When an offense has been actually day Broadwater had been summoned to ap- committed by one or more persons, and others
are present, the true criterion for determining pear before the grand jury, appellant left who are principals is: Did the parties act tohis home and went to the home of his son, gether in the commission of the offense? Was Frank Taylor, who lived on one of the roads the act done in pursuance of a common intent leading from Gilley's and Broadwater's home sign in which the minds of all united and conto Tyler, carrying a shotgun with him loaded curred? If so, then the law is that all are with buckshot. Willis Taylor was at the alike guilty, provided the offense was actually home of Frank Taylor, and the state con- committed during the existence and in the exetends that he watched the road, and when he cution of the common design and intent of all.” saw Gilley and Broadwater coming he walk- Under the peculiar facts in this case, we ed into the hall and called, “Pa ;" that ap- i think the criticisms of this paragraph meripellant walked into the hall. Willis Taylor torious, and this in and of itself would prehad the gun appellant had carried to the sent reversible error had the court nou given home of Frank Taylor that morning, and a special charge requested on this issue. as Gilley and Broadwater were driving past As the case will be reversed on other grounds, Willis fired, killing . Gilley and wounding we will say that on another trial, in connecBroadwater.
tion with the above paragraph of the charge, [1, 2] One of the contentions of appellant as it is admitted that appellant was present, is that these facts and circumstances, if he merely contending that he did not entrue, would not support a finding that appel- courage by words or gestures his son Willant was guilty as a principal in the com- lis, and did no act that would constitute him mission of the offense, even though Willis a principal, the court should instruct the Taylor was guilty of some grade of culpable jury that his mere presence would not conhomicide. This contention cannot be sus- stitute him a principal, and that, although tained. While the contention of the state is appellant was present, unless he gave Willis that appellant was also armed at the time some aid, or encouraged him by his words, with another shotgun, this is vigorously con- gestures, or conduct on the occasion, or had tested by the appellant; also the fact that advised the commission of the offense, he he knew that Willis intended to shoot Gil- would not be a principal in the commission ley, or that he aided by acts, or encouraged of the offense. Having instructed the jury by words or gestures, his son, who did the what would constitute one a principal, apshooting. It is true mere presence, without pellant, under the evidence offered by him, participation in any manner in the commis- had the right to have presented in the same sion of an offense, will not constitute one connection the rules of law governing when a principal. His presence, however, is a mere presence will not constitute one a princircumstance tending to prove that 'fact, cipal offender. which, taken with other facts and circum- [4, 5] The state's theory of the case being stances, may be sufficient to warrant the con- as above stated, it called Mrs. Frank Tayclusion he was a participant, in that he had lor as a witness. She says appellant came advised the commission of the offense, was to her home that morning, but she did not personally present, and by his acts and con- know whether or not he brought a gun with duct encouraged the person doing so to him. She testified that appellant and Wilcommit the offense. It is also true that one lis Taylor were in one room of the house,