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"If it should be determined that the communi- | ple in the community. All the witnesses say cation is privileged, exemption from liability will that prior to the time appellant put this not exist if it was made upon express malice or calumny in circulation, Miss Stephens' genwith a want of good faith." eral reputation for virtue and chastity was good, and they had never heard it questioned; that she moved in the best circles of society. This would authorize the jury to find that appellant acted with malice, if they believed his statement to be false; and the general rule is, as stated in Cyc.:

In this case there can be no question of good faith. Appellant alleged that he had carnal knowledge of the girl, and on the witness stand he asserts this to be true, and the court instructed the jury:

"That if you believe from the evidence that the said Elmer Stephens, at the time of the alleged imputation of want of chastity, if you find such imputation was made by defendant, was guilty of the acts set out in the information in this case, or that at said time, the said Elmer Ste phens was not a chaste and virtuous woman, you will acquit the defendant, whether you believe such want of chastity resulted from sexual intercourse with the defendant or some other person."

The jury under such charge must have found that the appellant's statement was false, else they would not have convicted him, and as he alleged he had carnally known the young lady, it is apparent, if false, such statement could not have been made in good faith.

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"In order to entitle the state to a conviction in this case the alleged imputation of a want of chastity in the said Elmer Stephens, if made by the defendant, must have been made either maliciously or wantonly. Therefore, I further charge you that although you may believe from the evidence, beyond a reasonable doubt, that the defendant did impute to the said Elmer Stephens a want of chastity by saying of and concerning her the things set out in the information in this case, yet, if you believe from the evidence that such things, so set out in said information, if said by the defendant, was not said either maliciously or wantonly; or if you have a reasonable doubt thereof, you will acquit the defend

ant."

In other parts of the charge the court defined the words "wanton" and "malicious." And the evidence will support a finding that the statement was maliciously made.

[4, 5] It is true appellant testified on the trial he had no ill will towards any of the Stephens family, but his acts and conduct contradict his words. He had been going with Miss Stephens. Her father commanded her to stop going with appellant. She informs appellant that he can come to see her no more that her father forbids. The father says appellant had been getting drunk, and engaging in other unseemly conduct, and this was the reason for forbidding him to come to his home. As soon as appellant is informed he was forbidden the house, he hunts up Joe Martin and puts this slander in circulation, and, when questioned about it, reiterates and affirms it to be true. He admits the young lady was at this time associating with his sisters and the best peo

"Malice on the part of defendant destroys his privilege. Such malice may be shown by the style and tone of the libelous statement, or by the fact that publication was made without exercising care and diligence to ascertain the truth."

In this instance there was no question of exercising care and diligence to ascertain the truth of the statement. Appellant knew

at the time he made the statement it was

false, if it in fact was untrue; and the jury so found under proper instructions, and, so holding, there was no error in admitting the affidavit in evidence.

The bills in regard to admitting in evidence the statement of Wolf to Mr. Stephens: The questions propounded to W. L. and Az Henderson, as qualified and approved by the court, present no error. It was permissible to show the bias and interest of the two Hendersons, and the fact that Mr. Wolf gave Mr. Stephens the information he did was necessary to be shown to obtain a thorough comprehension of the case.

[6] When Miss Elmer Stephens was on the witness stand, on cross-examination appellant propounded to her the question: "If she was willing to undergo a medical examination to determine who was telling the truth in the matter." The state objected to the question, and the court sustained the objection. Appellant does not state in the bill what the answer of the witness would have been, nor what he expected it to be, nor that if she agreed to undergo an examination what he believed would be the result. We might infer that he hoped the examination would demonstrate she had had intercourse with some man, but this would not indirectly tend to prove that appellant was the person with whom she had intercourse. We have always held that where a medical examination has been held, the physicians were properly permitted to testify to the conditions found, but a court can hardly be expected to stop a trial and hold it in abeyance while such an examination is being conducted. Such a request ought to be timely made, if made in good faith, that such an examination can be held without delaying the court in its orderly proceedings. We can see no reason why the appellant should not be permitted to make such request, and that the young lady be given an opportunity to permit the examination or refuse to do so. This would be a matter that the court could not force her to undergo, but she might be given the opportunity to do so,

if agreeable with her; but, the request for | his ordinary pursuit, and that a mere incisuch a proceeding in this instance being dental delay connected with his journey did not propounded in the midst of the trial, we law, did not correctly state the law and was prevent him from being a traveler within the cannot say the court erred in his ruling properly refused. in refusing to permit the trial to be delayed for such an inquiry at such a time.

[7, 8] The court did not read his charge to the jury before argument, but did submit it to counsel before reading it to the jury. This is a misdemeanor case, and, as before held by this court, it is the better practice to read the charge to the jury, as in felony cases, before argument, but this is not mandatory in misdemeanor cases. Appellant would have the right to except to the charge when presented to him, but the record shows he reserved no exception to it when he was given an opportunity to read it, and not doing so at that time, complaint could not be made for the first time in the motion for a new trial. When he was given an opportunity to read it, before it was read to the jury, then was the time for him to make his objection and request any corrections he de sired.

The court did not err in refusing the peremptory instructions to acquit, nor err in refusing to give the special charge asking the court to instruct the jury, that as a matter of law, the affidavit made by appellant was a privileged communication. The judgment is affirmed.

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(Court of Criminal Appeals of Texas. Oct. 20,
1915. Rehearing Denied Nov. 17, 1915.)
1. WEAPONS 17-CRIMINAL PROSECUTIONS
-SUFFICIENCY OF EVIDENCE.

On a trial for unlawfully carrying a pistol, evidence on the whole case and on the issue as to whether defendant was a traveler held sufficient to sustain a conviction.

[Ed. Note. For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. 17.]

[Ed. Note.-For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. 17.] 5. CRIMINAL LAW 1099-APPEAL-RECORD -MATTERS PRESENTED FOR REVIEW. defendant attacked the verdict on account of the In a motion for new trial in a criminal case, action of the jury de hors the record and for alleged improner argument of the county attorney, and also for newly discovered evidence. All controverted by the county attorney, and the of these matters were specially contested and court heard evidence thereon, but this evidence was not shown by the record. Defendant's bills of exceptions were filed long after the adjournment of the court. Held, that such matters were not so presented as to be reviewable, since, in order to be reviewed, such matters must be presented by a proper statement of facts, filed during term time, showing what the testimony

was.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. 1099.]

6. CRIMINAL LAW 1092-BILLS OF EXCEPTION-ALLOWANCE.

to alleged improper remarks of the county atWhere no exception was taken at the time torney and the matter was not called to the judge's attention until two weeks after the trial, and then by a motion for a new trial, and the cially denied using the language charged, the county attorney contested the matter and spejudge properly refused to allow a bill of exceptions to such remarks.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. 1092.]

Appeal from Coryell County Court; H. E. Bell, Judge.

W. O. Taylor was convicted of unlawfuliy carrying a pistol, and he appeals. Affirmed. Watt L. Saunders, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was indicted and upon trial convicted for unlaw2. CRIMINAL LAW 1159-APPEAL-REVIEW fully carrying a pistol. The lowest punish-QUESTIONS OF FACT.

Where the evidence was sufficient to sustain the verdict, whether defendant or the witnesses for the state were to be believed was a matter for the jury and the trial court alone. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]

3. CRIMINAL LAW 1038-APPEAL-RESERVATION OF GROUNDS OF REVIEW-INSTRUC

TIONS.

No error with respect to the refusal of requested charges was shown, where the transcript failed to show that defendant excepted to the charge and requested the submission of his special charges before the charge was read to

ment was assessed.

[1] He claimed and testified: That he lived at Waco, in McLennan county, and owned a farm in Coryell county, which he looked after. That on October 13, 1914, he went from Waco to his farm to attend to various matters of business there, carrying with him in his grip the large dark-handled Colts 45 pistol which his brother-in-law had requested him to bring to him. That at no time during this trip did he carry it on his person. After arriving in Coryell county, he stayed all night with Mr. Rubarth. The next morning he went to Mr. Moore's to see him about his rent and other things, which he did, and there, that morning, took the pistol out of his grip, put it in Moore's buggy, told On a trial for unlawfully carrying a pistol, Moore about it, and requested him to deliver an instruction that a "traveler" was a person it to his brother-in-law, which was shown to making a trip from one county to another, and away from his home, with the intention of be- have been done. That he neither saw nor ing away on some business or journey out of had that pistol again. That is not the pis

the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. 1038.] 4. WEAPONS 17-CRIMINAL PROSECUTIONS

-INSTRUCTIONS-TRAVELER."

"It is not a violation of the law to merely carry a pistol on one's way to deliver same to its owner."

And in submitting the case for a finding told them, if they believed beyond a reasonable doubt he carried the pistol at the time and place alleged, to find him guilty, unless he was at the time carrying it on his way to deliver it to its owner. And again affirmatively submitted this issue in his favor telling the jury, if you believe he was merely on his way to deliver the pistol to its owner, acquit him and find him not guilty.

tol he is charged with carrying. That day, [about a different pistol from that which he and the following, he is shown, and admits, was charged with carrying. Besides, the to having gone around to various places in court, in first telling the jury the law, corthe neighborhood to see various persons and rectly charged that: attended to various matters of business. That day, among other places, he went to another brother-in-law's, Clyce Parsons,' to see him about business matters. That Clyce was not then at home, but his wife was. She invited him, and he went into her house, sat down, talked to her about his troubles, and wanted to see her husband about some business matters, and also phoned while he was there. She testified she passed behind him while he was sitting, and his back was to her while he was phoning, and she saw his pistol scabbard sticking out underneath his coat and the shape of a pistol under his coat; that his coat was pulled up tight when he was phoning; that she smelled whisky on his breath, and she said, "he tried to get close to me and acted like he was drunk." After leaving Clyce Parsons,' the next day he went around to various other places seeing different persons about matters of business, and in his rounds shortly before he took a mail hack, and went into Clyce Parsons' field where Clyce was at work to see him about some business matter. While there Clyce told him he did not want him to come to his house drunk any more, scaring his wife, and that his wife thought he had a gun on at the time. That he (appellant) pulled back his coat, and the witness swore, "I saw the white handle of a pistol.

It was small." Again: "Yes, I saw him with a pistol on. He pulled back his coat, and I saw it. It was in his hip pocket." Appellant had his grip with him at this time. After talking to Clyce in his field a few minutes, the witness told him the mail hack from Purmela to Levita was coming over the hill, and appellant went and caught it. Appellant swore he had no pistol on the day before when at Mr. Parsons' house, nor in Parsons' field when Parsons swore he did, saw it, etc. [2] The evidence was clearly sufficient to sustain the verdict on the whole case and also on the issue of his claim that he was a traveler at the time he carried the pistol. The jury believed the state's witness, and did not believe appellant. This was for the jury alone and the lower court.

[4] In his second special charge he requested the court to tell the jury that a traveler "is a person making a trip from one county to another, and away from his home with the intention of being away on some business or journey out of his ordinary pursuit, and that a mere incidental delay connected with his journey does not prevent him from being a traveler in the meaning of the law." This is not the law. Williams v. State, 169 S. W. 1154; Younger v. State, supra. Besides, the court gave a correct charge on the subject and submitted that issue in the same way as the above question of carrying the pistol to its owner was submitted.

Appellant's application for a continuance was wholly insufficient, under the statute, showed a clear lack of diligence, and, besides, the evidence of the witness was wholly immaterial to any issue in the case.

The court's charge more than once told the jury that the burden of proof was upon the state to prove appellant guilty beyond a reasonable doubt before they could convict him. It is not susceptible of the construction that it required him to establish either of his defenses beyond a reasonable doubt. The reverse of this is true.

[5] In his amended motion, for a new trial he urged some grounds attacking the verdict on account of the action of the jury de hors the record; also, on the ground of claimed improper argument of the county attorney; and also for what he claimed was newly discovered evidence. All of these matters, as well as every other ground of his motion and bills of exceptions, were specially contested and controverted by the county attorney in his sworn plea in answer thereto. The record shows that when the court heard his said motion, and the contest thereof, he heard evidence thereon. What that evidence was, whether by affidavit or oral testimony, or both, is not shown by the record. All his bills of exceptions were filed long after the adjournment of the court. Under such cirHence, as presented, no error is shown. cumstances, none of these matters are preHowever, his first, on the issue of his carry- sented in such a way that we can review ing said pistol to his brother-in-law, was them. It has been the uniform holding of clearly on the weight of the evidence, and this court at all times, in a long line of de

[3] The judge gave a charge correctly submitting every issue made by the evidence. Appellant made no objection whatever to the charge at the time. He, however, requested two special charges which the court refused; but, as said by this court in the recent case of Younger v. State, 173 S. W. 1040: "The transcript fails to show that appellant excepted to the court's charge before being read to the jury and a request at that time for the submission of his special charges."

cisions, that such matters, in order to be reviewed by this court, must be presented by a proper statement of facts on the subject, filed during term time, showing what the testimony was. One of the leading cases is Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, and some of the others are collated in Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 730.

[6] There was certainly no error in the judge refusing to allow appellant a bill of exceptions to the claimed remarks of the county attorney when it was conclusively shown that no exception was taken thereto at the time. The matter was not called to the judge's attention until two weeks after the trial, and then by his amended motion for new trial. As stated, the county attorney contested this matter, and specially denied he used the language charged.

We have not discussed separately each of appellant's many assignments, though we have considered all of them. No error is pointed out that would authorize or require this court to reverse this case. The judgment is affirmed.

ELLIS v. STATE. (No. 3792.)

contested his motion on all the grounds raised, and especially on this ground. His claim on this ground is based on the purported affidavit of G. Q. Willis, which is attached to his motion, to the effect that he (Willis) heard Almer Byars tell George Ellis that he (Almer Byars) heard Allen Rhodes say that he (Allen Rhodes) saw Henry Adams with the said, or alleged, stolen flour, and that he had nothing to do with the alleged theft of same. Appellant in his motion said that Almer Byars, while they were both confined in the county jail at Quitman, told him that he heard Allen Rhodes say that Allen Rhodes saw Henry Adams with the alleged stolen sack of flour, and that defendant had nothing to do with the theft of the same; that he knew of this claimed witness before and at the time of his trial, but that he and his friends had forgotten the name of the witness who used said language; and that, if he had not forgotten the name of the witness, he would have had him testify at the trial. He claimed he could not get the affidavit of the witness to accompany his motion. As stated, the state by the county attorney vigorously contested appellant's motion, and among other things attached the sheriff's affidavit to his contest, wherein the sheriff swore that he had the said witness Al

(Court of Criminal Appeals of Texas. Nov. 3, mer Byars confined in the Wood county jail on

1915.) CRIMINAL LAW 956-NEW TRIAL-NEWLY DISCOVERED EVIDENCE. A new trial on the ground of newly discovered evidence, based on an affidavit that the affiant heard the witness inform accused that he had heard another say that accused was not the party guilty of the theft, will be denied, where the absent witness was in jail and could have been produced as could the affiant, and accused made no sufficient excuse for not hav. ing called such witness before, claiming that he merely forgot.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. 956.j

a charge of theft at the time the motion for a new trial herein was overruled, and that He was later that morning carried to the poor farm four miles from town to serve his sentence on said charge; that appellant's attorney had access to said Byars, and that he could have had him present on the hearing of his motion but did not ask for his presence; that the said G. Q. Willis was also in the jail at said time on a complaint out of the state of Oklahoma charging him with theft; and that Willis had been trying to get a lawyer to sue out a writ of habeas corpus and talked to appellant's attorneys before he

Appeal from Wood County Court; R. E. made said affidavit in this case. Bozeman, Judge.

George Ellis was convicted of misdemeanor theft, and he appeals. Affirmed.

Under all the authorities, the court clearly was justified in overruling his motion for a new trial. Section 1149, White's Ann. C. C.

C. C. McDonald, Asst. Atty. Gen., for the P., and the cases there cited.
State.
The judgment is affirmed.

PRENDERGAST, P. J. Appellant was convicted of misdemeanor theft, and his punishment assessed at a fine of $50 and two days in jail.

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There is no bill of exceptions in the record. (Court of Criminal Appeals of Texas. Nov. 3,

Appellant contends that the evidence is insufficient to sustain the conviction. We have carefully read it, and, in our opinion, it is not only sufficient but clearly shows appellant's guilt.

No other question is raised in such way that it can be considered, unless it be his contention that claimed newly discovered evidence would require a new trial. The state

1915. Rehearing Denied Nov.
17, 1915.)

1. CRIMINAL LAW 511-EVIDENCE-ACCOM-
PLICES-CORROBORATION.

In a prosecution for cattle theft, evidence of corroboration held sufficient to connect defend

ant with the offense and to justify conviction on an accomplice's testimony.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. 511.]

2. CRIMINAL LAW 508-EVIDENCE-Ac- [ sack of flour, a bucket of lard, and something COMPLICE'S TESTIMONY. Where a theft is established, a conviction else in a sack; he did not remember what may be had on accomplice testimony on proof of facts and circumstances tending to connect accused with the offense.

it was.

It is thus seen that Wesley Shelly sold the hide of the stolen cow to Barder, and a part [Ed. Note. For other cases, see Criminal of the property purchased with the proceeds Law, Cent. Dig. §§ 1099-1123; Dec. Dig. of the stolen property is traced direct to ap508.1

3. CRIMINAL LAW

TIONS.

pellant. This certainly tends to connect him 829-TRIAL-INSTRUC-with the theft. A jury would naturally in

The refusal of requested charges covered by those given is not error.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829.] Appeal from District Court, Austin County; Frank S. Roberts, Judge. Robert Edwards was convicted of cattle theft, and he appeals. Affirmed.

Duncan & Duncan, of Bellville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of cattle theft, and his punishment assessed at two years' confinement in the state penitentiary.

[1, 2] Wesley Shelly testified for the state, and testified he and appellant entered the pasture of Mr. E. B. Wilson, roped a cow, and took her to the home of appellant. There they butchered her, and divided the meat. He says they buried the entrails near the place where the cow was butchered, and he carried the head and hide with him in his buggy, and he buried the head on his place; that he agreed to take the hide to town and sell it, and they were to divide the money received for the hide. He then testified to selling the hide to Mr. Barder on Monday following, and says that appellant sent him word by King Jackson to purchase him some flour and other articles and send them to him by Louis Brown.

Mr. Barder testified he purchased a red cowhide from Wesley Shelly, and paid him $6.40 for the hide; that Mr. Palm brought a cow's head there and fitted it to the hide; that it was the same color as the hide, and fitted the hide he had purchased. There was no brand on the hide, but there was a hole on the hip of the hide about six inches square. This head had been found on Shelly's place, where he admitted he had buried it. King Jackson testified that appellant, upon learning that he was going to town, requested him to tell Wesley Shelly to send him his flour by Louis Brown. How appellant knew Shelly would be in town that morning is not disclosed, unless Shelly's testimony is true.

Ed Kirkpatrick testified that on that Monday he sold Wesley Shelly two sacks of flour, two buckets of lard, 25-pound sack of salt, and a can of oil.

Louis Brown testified that on that Monday Wesley Shelly got him to carry to appellant a

quire: How did he know Shelly would be in Bellville that day, how did he know he would have the money to buy the flour, and why on that day of all days did he send him word to send his flour? Appellant admits getting these articles, and admits sending word by King Jackson to send him the flour by Louis Brown, and that Louis Brown brought the flour and articles and delivered them to him, but he undertakes to explain that he had borrowed $10 from Herman Granon, and had loaned Shelly $5 of this borrowed money. But when Herman Granon was called as a witness, he said he did loan appellant $10, but said it was about three years before the date of this theft, and this would not explain why appellant knew Shelly would be in Bellville on that Monday with money to buy flour. Shelly also testified that the entrails and an unborn calf were buried on appellant's place, at a certain place, describing it. Officers went to this place and found where a hole had been dug, and they say there was a fearful scent in the hole, but no entrails were found and no unborn calf, but within about 100 yards of appellant's house the body of an unborn calf was found. Joe Arnold testified he was living on Mr. Wilson's place and was looking after his cattle; that he missed three or four of these cattle the latter part of December or first of January. One was a red cow. She was fat and large, and was with calf at the time he missed her. The cow had broad horns. He further testified he examined the hide found at Barder's; that, taking into consideration the color and size of the cow, the hide looked to him to be about as good a comparison as could be found anywhere. He tells of other facts and circumstances that led him to believe it was Wilson's cow. Thus a cow is shown to be missing, independent of the testimony of Wesley Shelly, and facts and circumstances are proven that would support the conviction of Shelly, as the horns and head and fresh beef were found on his place. And we think, when a portion of the proceeds of the sale of this stolen cow is traced direct to appellant, and other circumstances in the case, the testimony, independent of the testimony of Shelly, tends to connect appellant with the theft. The necessary corroborating testimony does not have to show in and of itself that appellant was guilty of stealing the cow. After it has been proven that a cow had been stolen, all it was necessary to prove, independent of the accomplice's testimony,

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