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128 pounds, while deceased weighed considerably more.

His

went on without any trouble until some time | lant, the deceased being 25 to 28 years of after the dinner or noon hour. Everything age, and appellant about 50, and weighed was pleasant and quiet until about 4 o'clock or a little thereafter. The singing school adjourned. Marshall English and his friends Taking into consideration all these conand kinsfolk were in and about the school- flicts as to the relative size of the parties house, mainly dressed in their working and the number of parties engaged in the clothes. It is shown they were about the difficulty at the time of the homicide, there doors and windows, and the theory of the are some facts that might be mentioned undefendant was they were locating appellant, der the evidence still more peculiar. The of all of which he seems to have been ig- clothing worn by appellant-shirt and underAfter the benediction was pronounc- shirt-were introduced in evidence before ed, and while appellant was near the ros- the jury to show the position of the holes trum, Marshall English and one of his com- which corresponded with the holes in appelpanions entered the side door, and the dif- lant's body as to where he was shot. His ficulty immediately ensued. The evidence is wife testified that she looked at him and exin conflict as to who began this difficulty. amined him, and saw the doctor examine him. Appellant and his witnesses say that Mar- She says he was so bloody she did not recshall English caught appellant by the collar ognize him at once, and did not know her and began beating him in the face, crowded husband was engaged in a difficulty until she him back on the rostrum, threw him to the noticed his clothing, and then she discovered floor, got on him, and another of the English the fact that it was her husband. She, with family friends came into the front door and quite a lot of other witnesses, testified that shot appellant while the others were yet on the first gun fired was from the English parhim. The state's witnesses contend that ap- ty, and that the other shots followed from pellant began the difficulty by striking Mar- the man on the floor, who she afterwards asshall English in the face, and that appellant certained to be her husband; that immeshot English before anybody shot him. The diately upon ascertaining it was her husband contradictions and conflicts of the testimony she asked him what was the matter. of this case are rather peculiar. The state's reply was that "Ben James and Marshall theory, in addition to what has been above English have tried to kill me.' I said, 'Merstated, was that appellant was standing in cy sakes, what is the matter?' and he said, the house and Marshall English, and one of 'Ben James and Marshall English have tried his friends entered and passed near where to kill me.'" Ben James is the party who he was, and appellant struck him; that struck with the pistol. She describes the Marshall English, the deceased, then struck wounds on appellant, and said she saw the him, and a fight ensued between them, in doctor probe and examine the bullet wounds; which appellant pushed English back to the one bullet entered his chin, went through his rostrum, and during the trouble shot him jaw, and came out through his lip; that it twice, once in the leg, and once in the body. came through his mouth and scorched his Appellant's side of the case was that he was lip and tongue; that his tongue was burned. standing at the designated spot, when de- The other bullet entered the left side right ceased and a friend entered, and deceased at the waist line, and "came out by the struck him, and the fight ensued, and that breast." The doctor probed for the bullet, they pushed him back against the rostrum and found that it went out that way. and onto it, and had him down and were further describing the wound, she said she beating him; that there were four, five, or found the hole in the shirt and in the undersix of the Englishes and their friends en- shirt, and the position of the holes corregaged in the difficulty, and Marshall English sponded with the holes in his body. This was on him. Some of the testimony goes to shirt and undershirt were introduced before show that Marshall English, when shot, was the jury. She says her husband was cut standing up bending down over appellant and across the face with a knife; that it looked beating him. Appellant says in this condi- like it was nearly to the bone, and across the tion that he was shot by one of them, and nose there was a knife cut. When the doctor that he immediately got his pistol out and dressed the bullet wounds, he also dressed fired two shots rapidly. The evidence for these other wounds. He had a good many the state controverts this, as before stated, bruises on him, and it is also shown there and shows all of these people were not on were two scalp wounds on his head. One him. One of the state's witnesses, however, was closed with five stitches, and the other testified that he ran up, jerked his pistol, with three stitches. with three stitches. All the evidence indiand struck appellant over the head once or cates that he was very bloody when he emergtwice as hard as he could hit him, and that ed from the combat. The state introduced the pistol, by force of the jars, was dis- evidence and contended that the original charged, and, he supposes, struck appellant. fight occurred only between Marshall English There is a great deal of testimony as to the and the defendant, and that Ben James and relative size of the parties, but it may be the others got into it subsequently, and disfairly stated that deceased was a larger man claimed using a knife, and that after James

In

Another charge was given at request of appellant which is as follows:

"If deceased attacked the defendant, and was assaulting him so violently as to warrant in his rious bodily harm, and, so fearing, he shot and mind a reasonable apprehension or fear of sekilled the deceased to save himself from such serious bodily harm, then you will acquit the defendant, although you might find that no other time he fired the fatal shot." person or persons were assaulting him at the

the head, and the pistol was discharged in, circumstances that he would have if it was done this way, that he then became engaged in purposely." a contest with the son of appellant over the pistol; so it will be observed that the testimony is very wide apart as to how this transaction occurred. If appellant was shot through the jaw and the mouth, as testified to, and in the side, he must have been shot twice; yet the bulk of this testimony shows there were but three shots fired. It is seldom the case that a record comes before this court where the evidence is so variant and conflicting by eyewitnesses as shown by this record. This much of the testimony is collated in order to bring in review the court's charge, exceptions thereto, and special instructions requested.

[1-3] There is no definition of manslaughter or murder contained in the charge of the court. The court informs the jury:

He asked another special charge, which was refused, as follows:

"The defendant's perfect right of self-defense does not depend upon an actual conspiracy on the part of the deceased and others to inflict upon him serious bodily harm, but if he believed at the time that he was in danger of serious bodily harm from any one or more, viewing the case from his standpoint, as it appeared to him at the time, then he would have a right "The indictment embraces both murder and defense, and, if he did so, and in the difficulty to anticipate such attack and act in his own ensuing killed the deceased, or if you have a reasonable doubt thereof, then you will acquit him."

manslaughter."

Then follows this charge:

"If you believe from the evidence beyond a reasonable doubt that the defendant began the difficulty with the intention of killing the deceased, he would be guilty of murder, and if you believe he began it with an intention less than to take the life of deceased, he would be guilty of manslaughter. And if you believe, beyond a reasonable doubt, that he began the difficulty, but have a doubt as to his intentions, you will give him the benefit of the doubt and convict him of manslaughter, subject to the succeeding paragraph of this charge."

Then follows the punishment for murder and manslaughter. Then he gave what he termed in the charge "succeeding paragraph": "If the deceased and others had formed a conspiracy to kill the defendant, or inflict upon him serious bodily harm, and began the difficulty, or if it reasonably appeared to the defendant that they were about to begin the difficulty, then the defendant had the right to make the attack, and to shoot and kill the deceased.

"If you believe that the deceased began the difficulty by making an assault on the defendant with his fist, and that before any one else interfered in the difficulty (if they did interfere in the difficulty) the defendant shot and killed deceased, he would be guilty of manslaughter, but if others, acting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in this case, it reasonably appeared to the defendant, viewing from his standpoint, that others were about to attack him, and under such circumstances he shot and killed deceased, then you will acquit him."

Then follows a charge on dying declara

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"In passing upon the issue of self-defense in this case, you must view the situation from the standpoint of the defendant alone, and from no other standpoint."

This was given. Another special charge was asked, which we suppose was given, as follows:

"If you believe from the testimony that the defendant was shot, and that it was done accidentally, you are instructed that, if he believed it was purposely done, he would have the

One objection to the charge at the time it was given, before being read to the jury, was to that part of the charge quoted above which is denominated in the previous portion of this opinion as the "succeeding paragraph." The objection was that it limits the defendant's right to defend himself against an attack of the deceased and others if they had formed a conspiracy to kill or indict serious bodily harm upon him, because said charge limits the defendant's right of selfdefense to an attack not by the deceased alone, but by the deceased and others, and that, too, after they had formed a conspiracy to do serious bodily harm to him or kill him, whereas under the law he would have the right to defend himself against the deceased or against the deceased and others whether they had formed a conspiracy to injure him or not, and because said charge limits his right of self-defense under the circumstances of this case. He also objected to that portion of the charge which instructed the jury, as already heretofore set out, "If you believe that the deceased began the difficulty by making an assault on the defendant with his fist, and that before any one else interfered in the difficulty," etc., he would be guilty of manslaughter, but if others, acting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in this case, it reasonably appeared to defendant, viewing from his standpoint, that others were about to attack him, then they would acquit. The objection urged to this charge was that it deprived defendant of any right to defend himself against an unlawful attack upon him by the deceased alone, while the evidence tended to show, and which would have been sustained as a fact, that the defendant was at the time of the difficulty over 50 years of age, and weighed

This

shown to have been at that time a robust,, out by much of the testimony, when deceasathletic young man about 28 years old, weigh- ed, Marshall English, approached him, or ing about 155 to 160 pounds, and therefore in passing by him struck him on the face, able to inflict upon defendant serious bodily harm without the use of any weapons, and defendant contends that he should have the perfect right of self-defense against said deceased without being limited. The court qualifies this by stating that:

"The defendant was 49 years old, and weighed 128 pounds; that deceased was 28 years old, and weighed 150 or 160 pounds, was delicate, weak, and 'weasley,' but could walk without a There was no proof that deceased was a man of superior strength to defendant."

He further qualifies it by stating that: "The state's evidence showed that defendant and deceased were both on their feet, standing up, when the two fatal shots were fired; that defendant had been attacked by deceased and others beating him; also that still another had shot him; and that he then fired in self-defense. So there was no middle ground. Besides, this paragraph complained of was expressly modified by defendant's special charge No. 1."

and some witnesses say on the neck. brought about the difficulty. Marshall English, being somewhat stronger, more vigorous, and much younger, and having advantage of appellant, got him down on the floor and was beating him, and while in this condition there was a pistol fired, and appellant says he immediately fired two shots. If appellant killed the deceased, Marshall English, because, from his viewpoint of it, his life was in danger or his body of serious bodily injury, he had a right to shoot, and to shoot until he relieved himself of impending danger, whether the other parties had anything to do with the trouble or not, or when they came into the difficulty. But, be that as it may, he had a right to have this question of self-defense presented to the jury, from the acts and conduct and relation of himself to the deceased, and the deceased's relation to him from that standpoint. There is testimony also that enhances his views and may have impressed itself upon defendant's idea of environment that these parties were there to have trouble, and that Marshall English, the deceased, and others went in to bring it on, and the others to join in later, if necessary. If, anticipating this, he killed English before the others came into it, while he was in danger of serious bodily injury, he would have the perfect right of self-defense from this standpoint. If, as another phase of the testimony shows, while he was down, and they were beating him, a pistol fired, and he was shot, certainly he had the perfect right of self-defense from the attack of more than one. It was not definitely so charged to the jury, and his right of selfdefense was limited in this respect. It is true if he killed to resist the acts of the conspirators, he would not be guilty, but defendant had a right to resist all danger of his life or serious bodily injury from the standpoint of English's attack under the circumstances of this case. He had a right to view it in the light of a conspiracy, and that Marshall English was to bring it on, and he had a right to kill him before all conspiring parties attacked him. His right of self-defense would be perfect if he was attacked by more than one of these parties under. the circumstances already detailed. These matters were not submitted to the jury, as they should have been.

There was another charge given by the court with reference to the deceased striking appellant with his fist, which is qualified by the judge in the same way. This charge informed the jury that, if the deceased began the difficulty by striking defendant with his fist, and that before any one else interfered in the difficulty the defendant shot and killed deceased, he would be guilty of manslaughter, but if others, acting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in the case, it reasonably appeared to the defendant, viewing it from his standpoint, that others were about to attack him, and under such circumstances he shot and killed deceased, he would not be guilty. On account of the peculiar construction and wording of the charge given by the court, it has been deemed necessary to make a more detailed statement of these charges given and refused than would otherwise be required. It will be noticed that the first charge starts out upon the assumption that the defendant struck the deceased first; that, if defendant did it for the purpose of provoking a difficulty to kill, he would be guilty of murder; if not to kill, he would be guilty of manslaughter. There is no definition given of murder or manslaughter. So the remainder of the charge seems to be a confused statement, and not a clear enunciation of law as to the rights of the defendant if he killed the deceased Marshall English because [4] The charge is not clear again as it he thought his life was in danger, or his might be with reference to defendant's attibody of serious bodily harm, independent tude, viewed from his standpoint of the case. of the acts of others. Nor is the charge The keynote and controlling thought and clear as to the relation of the conspiracy central point in the question of self-defense phase of it to defendant's right. As has is to be viewed from the standpoint of the been heretofore noticed, it would be difficult defendant, not as the other side viewed it, to imagine a state of facts more confused but as defendant viewed it. Again, it is his and more in conflict than this record shows. viewpoint of it, and not the viewpoint of Appellant's theory was that he was stand- the jury as they see it subsequent to the ing quietly smoking, and in this he is borne homicide. Defendant has a right to have his

side submitted as he viewed it at the time of the transaction. He could not look at the transaction in the light of what might occur afterwards, nor could he look at it in any light of prior occurrences, unless those prior occurrences were in some way brought to his attention directly or indirectly. These are general and usually correctly stated rules. It is unnecessary to go over this case further. Enough has been said to indicate that the defendant must have the law applied to the facts of his case, and the jury must be given a true and correct criterion by which to decide his rights and his connection with these matters.

PRENDERGAST, P. J. Appellant was convicted of swindling J. J. Brown, and her punishment assessed at a fine of $300 and six months in jail.

We will give a summary of what the evidence, though contradictory in some respects, was amply sufficient to establish: On April 20, 1915, and before and after that, she was engaged in running an employment agency in Ft. Worth, and so advertised in the paper. Said Brown was a young man engaged in running dairies and feeding cattle, and was at the time feeding cattle at Corsicana. He saw her advertisement, and called and talked to her over long-distance phone, and told her

The judgment is reversed, and the cause his qualifications and experience and the posiremanded.

ARNOLD v. STATE. (No. 3669.)

tion he wanted. She told him she had the very position he wanted waiting for him; that it was as manager of a large farm and dairy. They then agreed that he should go

(Court of Criminal Appeals of Texas. Oct. 20, to Ft. Worth and see her about it the next

1915. Rehearing Denied
Nov. 17, 1915.)

1. WITNESSES 337-ACCUSED AS WITNESS -IMPEACHMENT PREVIOUS CHARGES-EVI

DENCE.

In a prosecution for swindling, in which defendant testified on her own behalf, it was proper on cross-examination to question accused as to previous charges of swindling against her.

day, which he did. She then repeated her representations to him, and again told him the job was waiting for him, and that the place was managing the farm and dairy where they were milking about 65 dairy cows and had about 1,500 acres planted in wheat; that the position would pay him about $80 per month salary, and he would be furnished a house free. He asked her the name of the party and the location. She refused to di

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-vulge this to him until he should pay her $10 1148; Dec. Dig. 337.]

2. CRIMINAL LAW 372-SWINDLING-SIMILAR TRANSACTIONS-EVIDENCE.

Where, in a prosecution against the operator of an employment agency for swindling, accused swore that she did not intend to swindle the prosecuting witness in the transaction with him, or any other persons with whom she had contracts to secure employment, the state could prove similar transactions with other parties about the same time which tended to show the intent of accused and her system of operating.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. 372.j

3. CRIMINAL LAW

447-SWINDLING-CON

TRACT-MERGER-EVIDENCE.

The written contract whereby accused undertook to secure employment for the prosecuting witness on certain terms did not merge accused's representations thereunder so as to prevent the state from going behind the contract and showing the true facts.

[Ed. Note.-For other cases, see Criminal Law, Cent.Dig. §§ 1029-1031; Dec.Dig. 447.] 4. FALSE PRETENSES 49-EVIDENCE-SUFFICIENCY.

In a prosecution for swindling against the operator of an employment agency, evidence held sufficient to support a conviction.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. 49.]

Appeal from Tarrant County Court; Jesse M. Brown, Judge.

in advance and sign one of her printed contracts. He told her that he could then pay her but $5; that he had to have a little money left; and that he would pay her the other $5 when he got the position. He then paid her $5, signed one of her printed contracts, and asked her again who the person was who was going to employ him at the salary and terms and for the purpose she had represented. She then told him it was Mr. R. E. Smith at Sherman. She then showed him a letter from said Smith to her, but she had torn off the place and date of the letter. It had been written nearly a year before. At her instance he then read it, and saw from it that Mr. Smith had no such place as she had represented; she insisting that he had. He then declined to go to Sherman and see Smith without she should further communicate with him over the phone and know that he had the position for him that she represented he had. She phoned Smith and had a talk with him over the long-distance phone. In effect, him over the long-distance phone. Smith told her that he had no such position. Brown, after waiting a sufficient time for her to so communicate with Smith, went to see her again, and she told him that she had talked to Smith, and, in substance, Smith told

Mrs. Pete Arnold was convicted of swin-her that he had such position, and for him to dling, and she appeals. Affirmed.

Mays & Mays and John L. Poulter, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.

come on. He immediately went to see Smith at Sherman. Smith told him, and swore on this trial, that he had no dairy, and never had run a dairy; that he at that time milked only 6 or 7 cows for his own use, and that

was a greater number than he had ever milk-, and in the lower court was, in substance, ed before; that he wanted no one to manage that the printed contract which she had his farm; he managed it himself, and declin- Brown to sign at the time he paid her his ed to employ Brown for any such position as money, in effect, merged all of her represenshe had represented to him Smith then had tations therein, and that the effect of the for him. Brown was then out of money, and contract was that she did not represent to had to go to work there to raise sufficient Brown that Smith would employ him to do funds to return to Ft. Worth, which he did, the work and at the salary she had stated to working for Smith at $1.75 a day sawing cord him, but that it authorized her, within 30 wood with a bunch of negroes. He had to He had to days if Smith did not give him that position, support himself out of the $1.75 a day. He to get him some other employment of a difworked six days, got his money from Smith, ferent or the same kind. ferent or the same kind. We do not so unand returned to Ft. Worth and demanded his derstand the contract, nor that the state nor money back, telling her what he had found Brown would be conclusively bound thereby, out and done with Smith. She refused to re- and not permitted to show the true facts of pay him his money. He then prosecuted her the transaction. She herself, on cross-examfirst for the theft of the money. This court ination, testified that she wrote in the body held that it did not amount to theft, but the of said contract, and herself signed it, thus: offense might be swindling. 176 S. W. 159. "It is agreed and understood that in the event Thereupon she was prosecuted in this case. this position is not accepted the money is returned." The testimony authorized the jury to believe, and by their verdict they, in effect, did believe, that all of her said representations to Brown in order to get his money were false and known by her and not by him, to be so at the time and that he relied upon them, and was thereby induced to pay her his money, which she refused to refund.

cases.

[1] She testified on the trial. On crossexamination, for the purpose of impeaching her, the court permitted the state to ask her, and she answered, that she had theretofore been charged with swindling in 10 or 15 Swindling is certainly an offense showing moral turpitude. This evidence was admissible, as has uniformly been held by this court in a large number of cases. Mr. Branch, in his Criminal Law (section 868), so states the rules to be, and collates a considerable number of cases to that effect.

[2] She swore that she did not intend to swindle Brown in the transaction she had with him, and that she did not intend to swindle any other person with whom she had made like contracts under substantially the same kind of representations she had made to Brown. Therefore the question of her intent in this transaction and her system in like transactions was material. The court therefore did not err in permitting the state to prove over her objections several other like transactions she had with different parties about the same time she had this transaction with Brown; for such testimony clearly tended to show what her intent was and the system she used in such transactions. This has been so uniformly decided in this state -and the text-books are all to the same effect that it seems useless to again cite the authorities, but see Branch's Criminal Law, § 338, where he collates a large number of

cases.

[3] The only other question appellant presents is her claim that the evidence is insufficient to sustain the verdict. Her contention and that of her attorneys on the trial

And she testified that that was intended to vary the 30 days stipulation contained in the printed form, and that she meant to return Brown his money if he did not accept the position. Taking the printed signed contract and all the testimony together, it amply shows that she made the said representations in effect as Brown had testified she made them, and got his money on the faith that he would get the position from Smith she told him was waiting for him at the salary she represented, and a house free, and that, if he did not get that identical contract which she said Smith would make with him, he was then, and not in some other contingency, to get his money back. It is certain that he did not get the position; that Smith had no such position at all, nor at the salary she represented he would get.

[4] Her attorney who represented her in this court, but who did not in the court below, now contends that the evidence is insufficient to sustain the verdict on the additional ground, not made in the court below, and for the first time made in this court, to the effect that Brown did not testify he believed her said representations to be true, and that he relied upon them in parting with the title to his money when he paid it to her. It is true that Brown, in his testimony, did not use that specific language, but, taking his testimony as a whole and his acts, there can be no question, and the jury was clearly authorized to believe, that Brown did believe her said false representations and relied upon them, and paid her his money, based solely on his reliance upon her said representations, which the jury was authorized to believe from the testimony were false. After a careful study of the evidence, we think that it was amply sufficient for the jury to believe therefrom all the essential facts to authorize her conviction. viction. The court so required the jury to believe before they could convict her. The judgment will be affirmed.

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