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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 128 pounds, while deceased weighed considor a little thereafter. The singing school ad- erably more. journed. Marshall English and his friends Taking into consideration all these conand kinsfolk were in and about the school- ' ficts 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 undernorant. After 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. His 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. In 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. 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 Tex.)

WELBORN V. STATE

1181

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 Another charge was given at request of pistol; so it will be observed that the testi- appellant which is as follows: mony is very wide apart as to how this If deceased attacked the defendant, and was transaction occurred. If appellant was shot assaulting him so violently as to warrant in his through the jaw and the mouth, as testified rious bodily harm, and, so fearing, he shot and

mind a reasonable apprehension or fear of seto, and in the side, he must have been shot killed the deceased to save himself from such twice; yet the bulk of this testimony shows serious bodily harm, then you will acquit the dethere were but three shots fired. It is seldom fendant, although you might find that no other the case that a record comes before this court time he fired the fatal shot.'

person or persons were assaulting him at the where the evidence is so variant and con

He asked another special charge, which flicting by eyewitnesses as shown by this was refused, as follows: record. This much of the testimony is col

"The defendant's perfect right of self-defense lated in order to bring in review the court's does not depend upon an actual conspiracy on charge, exceptions thereto, and special in the part of the deceased and others to inflict structions requested.

upon him serious bodily harm, but if he be[1-3] There is no definition of manslaugh- rious bodily harm from any one or more, view,

lieved at the time that he was in danger of seter or murder contained in the charge of the ing the case from his standpoint, as it appeared court. The court informs the jury:

to him at the time, then he would have a right “The indictment embraces both murder and to anticipate such attack and act in his own manslaughter."

defense, and, if he did so, and in the difficulty

ensuing killed the deceased, or if you have a Then follows this charge:

reasonable doubt thereof, then you will acquit "If you believe from the evidence beyond a him." reasonable doubt that the defendant began the

One objection to the charge at the time it difficulty with the intention of killing the deceased, he would be guilty of murder, and if was given, before being read to the jury, you believe he began it with an intention less was to that part of the charge quoted above than to take the life of deceased, he would be which is denominated in the previous portion

of , yond a reasonable doubt, that he began the dif- of this opinion as the “succeeding paraficulty, but have a doubt as to his intentions, graph.” The objection was that it limits the you will give him the benefit of the doubt and defendant's right to defend himself against convict him of manslaughter, subject to the an attack of the deceased and others if they succeeding paragraph of this charge."

had formed a conspiracy to kill or indict Then follows the punishment for murder serious bodily harm upon him, because said and manslaughter. Then he gave what he charge limits the defendant's right of selftermed in the charge "succeeding paragraph”: defense to an attack not by the deceased

“If the deceased and others had formed a con- alone, but by the deceased and others, and spiracy to kill the defendant, or inflict upon him serious bodily harm, and began the difficulty, that, too, after they had formed a conspiracy or if it reasonably appeared to the defendant to do serious bodily harm to him or kill him, that they were about to begin the difficulty, whereas under the law he would have the then the defendant had the right to make the right to defend himself against the deceased attack, and to shoot and kill the deceased.

"If you believe that the deceased began the or against the deceased and others whether difficulty by making an assault on the defendant they had formed a conspiracy to injure him with his fist, and that before any one else inter- or not, and because said charge limits his fered in the difficulty (if they did interfere in the difficulty) the defendant shot and killed de right of self-defense under the circumstances ceased, he would be guilty of manslaughter, but of this case. He also objected to that porif others, acting with deceased, attacked de- tion of the charge which instructed the jury, fendant, or from their acts and conduct, taken as already heretofore set out, “If you believe in connection with the assault by deceased, and all other circumstances in this case, it reason that the deceased began the difficulty by ably appeared to the defendant, viewing from making an assault on the defendant with his his standpoint, that others were about to at- fist, and that before any one else interfered tack him, and under such circumstances he in the difficulty,” etc., he would be guilty of shot and killed deceased, then you will acquit him."

manslaughter, but if others, acting with deThen follows a charge on dying declara- ceased, attacked defendant, or from their tion.

acts and conduct, taken in connection with Appellant asked the following special the assault by deceased, and all other circharge:

cumstances in this case, it reasonably ar"In passing upon the issue of self-defense in peared to defendant, viewing from his standthis case, you must view the situation from the point, that others were about to attack him, standpoint of the defendant alone, and from no then they would acquit. The objection urged other standpoint."

to this charge was that it deprived defendant This was given. Another special charge of any right to defend himself against an was asked, which we suppose was given, as unlawful attack upon him by the deceased follows:

alone, while the evidence tended to show, If you believe from the testimony that the and which would have been sustained as a defendant was shot, and that it was done ac- fact, that the defendant was at the time of the ed it was purposely done, he would have the difficulty over 50 years of age, and weighed 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 and some witnesses say on the neck. This harm without the use of any weapons, and brought about the clifficulty. Marshall Eng. defendant contends that he should have the lish, being somewhat stronger, more vigorous, perfect right of self-defense against said de- and much younger, and having advantage of ceased without being limited. The court appellant, got him down on the floor and was qualifies this by stating that:

beating him, and while in this condition there "The defendant was 49 years old, and weigh-was a pistol fired, and appellant says he imed 128 pounds; that deceased was 28 years old, mediately fired two shots. and weighed 150 or 160 pounds, was delicate, killed the deceased, Marshall English, be

If appellant weak, and 'weasley,' but could walk without a stick or crutch. There was no proof that de- cause, from his viewpoint of it, his life was ceased was a man of superior strength to de- in danger or his body of serious bodily infendant."

jury, he had a right to shoot, and to shoot He further qualifies it by stating that: until he relieved himself of impending dan“The state's evidence showed that defendant ger, whether the other parties had anything and deceased were both on their feet, standing to do with the trouble or not, or when they up, when the two fatal shots were fired; that defendant had been attacked by deceased and came into the difficulty. But, be that as it others beating him; also that still another had may, he had a right to have this question of shot him; and that he then fired in self-defense, self-defense presented to the jury, from the So there was no middle ground. Besides, this paragraph complained of was expressly modified acts and conduct and relation of himself to by defendant's special charge No. 1."

the deceased, and the deceased's relation to There was another charge given by the him from that standpoint. There is testicourt with reference to the deceased strik- mony also that enhances his views and may ing appellant with his fist, which is qualified bave impressed itself upon defendant's idea by the judge in the same way. This charge of environment that these parties were informed the jury that, if the deceased began there to have trouble, and that Marshall Engthe difficulty by striking defendant with his lish, the deceased, and others went in to fist, and that before any one else interfered bring it on, and the others to join in later, in the difficulty the defendant shot and kill- if necessary. If, anticipating this, he killed ed deceased, he would be guilty of man- English before the others came into it, while slaughter, but if others, acting with deceas- he was in danger of serious bodily injury, he ed, attacked defendant, or from their acts would have the perfect right of self-defense and conduct, taken in connection with the from this standpoint. If, as another phase assault by deceased, and all other circum- of the testimony shows, while he was down, stances in the case, it reasonably appeared and they were beating him, a pistol fired, to the defendant, viewing it from his stand and he was shot, certainly he had the perpoint, that others were about to attack fect right of self-defense from the attack him, and under such circumstances he shot of more than one. It was not definitely so and killed deceased, he would not be guilty. charged to the jury, and his right of self

On account of the peculiar construction defense was limited in this respect. It is and wording of the charge given by the true if he killed to resist the acts of the concourt, it has been deemed necessary to make spirators, he would not be guilty, but defenda more detailed statement of these charges ant had a right to resist all danger of his given and refused than would otherwise be life or serious bodily injury from the standrequired. It will be noticed that the first point of English's attack under the circumcharge starts out upon the assumption that stances of this case.

stances of this case. He had a right to view the defendant struck the deceased first; that, it in the light of a conspiracy, and that if defendant did it for the purpose of pro- Marshall English was to bring it on, and voking a difficulty to kill, he would be guilty he had a right to kill him before all conof murder; if not to kill, he would be guilty spiring parties attacked him. His right of of manslaughter. There is no definition giv- self-defense would be perfect if he was aten of murder or manslaughter. So the re

So the re- tacked by more than one of these parties unmainder of the charge seems to be a confus- der. the circumstances already detailed. ed statement, and not a clear enunciation of These matters were not submitted to the law as to the rights of the defendant if he jury, as they should have been. 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

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 Tex.)

ARNOLD V. STATE

1183

side submitted as he viewed it at the time of PRENDERGAST, P. J. Appellant was conthe transaction. He could not look at the victed of swindling J. J. Brown, and her puntransaction in the light of what might oc-ishment assessed at a fine of $300 and six cur afterwards, nor could he look at it in months in jail. any light of prior occurrences, unless those We will give a summary of what the eviprior occurrences were in some way brought dence, though contradictory in some respects, to his attention directly or indirectly. These was amply sufficient to establish: On April are general and usually correctly stated 20, 1915, and before and after that, she was rules. It is unnecessary to go over this case engaged in running an employment agency further. Enough has been said to indicate in Ft. Worth, and so advertised in the paper. that the defendant must have the law ap- Said Brown was a young man engaged in plied to the facts of his case, and the jury running dairies and feeding cattle, and was must be given a true and correct criterion at the time feeding cattle at Corsicana. He by which to decide his rights and his con- saw her advertisement, and called and talked nection with these matters.

to her over long-distance phone, and told her The judgment is reversed, and the cause his qualifications and experience and the posiremanded,

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 ARNOLD V. STATE. (No. 3669.)

dairy. They then agreed that he should go

to Ft. Worth and see her about it the next (Court of Criminal Appeals of Texas. Oct. 20, day, which he did. She then repeated her

1915. Rehearing Denied
Nov. 17, 1915.)

representations to him, and again told him 1. WITNESSES O 337-ACCUSED AS WITNESS

the job was waiting for him, and that the -IMPEACHMENT_PREVIOUS CHARGES-Evi- place was managing the farm and dairy DENCE.

where they were milking about 65 dairy cows In a prosecution for swindling, in which de- and had about 1,500 acres planted in wheat; fendant testified on her own behalf, it was that the position would pay him about $80 proper on cross-examination to question accused as to previous charges of swindling against per month salary, and he would be furnished her.

a house free. He asked her the name of the [Ed. Note.-For other cases, see Witnesses, party and the location. She refused to diCent. Dig. SS 1113, 1129-1132, 1140–1142, 1146- | vulge this to him until he should pay her $10 1148; Dec. Dig. 337.)

in advance and sign one of her printed con2. CRIMINAL LAW 372-SWINDLING-SIMILAR TRANSACTIONS-EVIDENCE.

tracts. He told her that he could then pay Where, in a prosecution against the opera- her but $5; that he had to have a little tor of an employment agency for swindling, ac-money left; and that he would pay her the cused swore that she did not intend to swindle the prosecuting witness in the transaction with other $5 when he got the position. He then him, or any other persons with whom she had paid her $5, signed one of her printed concontracts to secure employment, the state could tracts, and asked her again who the person prove similar transactions with other parties was who was going to employ him at the salabout the same time which tended to show the intent of accused and her system of operating.

ary and terms and for the purpose she had [Ed. Note.--For other cases, see Criminal represented. She then told him it was Mr. Law, Cent. Dig. 88 833, 834; Dec. Dig. Omw R. E. Smith at Sherman. She then showed 372.)

him a letter from said Smith to her, but she 3. CRIMINAL LAW ww447.--SWINDLING-CON- had torn off the place and date of the letter. TRACT– MERGER-EVIDENCE. The written contract whereby accused un

It had been written nearly a year before. At dertook to secure employment for the prosecut- her instance he then read it, and saw from it ing witness on certain terms did not merge ac- that Mr. Smith had no such place as she had cused's representations thereunder so as to pre- represented; she insisting that he had. He vent the state from going behind the contract then declined to go to Sherman and see Smith and showing the true facts.

[Ed. Note.--For other cases, see Criminal without she should further communicate with Law, Cent.Dig. 88 1029-1031; Dec. Dig. 447.] him over the phone and know that he had 4. FALSE PRETENSES O 49-EVIDENCE-SUF- the position for him that she represented he FICIENCY.

had. She phoned Smith and had a talk with In a prosecution for swindling against the operator of an employment agency, evidence held him over the long-distance phone. In effect, sufficient to support a conviction.

Smith told her that he had no such position. [Ed. Note.-For other_cases, see False Pre-Brown, after waiting a sufficient time for her tenses, Cent. Dig. $ 62; Dec. Dig. Om 49.] to so communicate with Smith, went to see

Appeal from Tarrant County Court; Jesse her again, and she told him that she had M. Brown, Judge.

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.

come on. He immediately went to see Smith

at Sherman. Smith told him, and swore on Mays & Mays and John L. Poulter, both of this trial, that he had no dairy, and never Ft. Worth, for appellant. C. C. McDonald, had run a dairy; that he at that time milked Asst. Atty Gen., for the State.

only 6 or 7 cows for his own use, and that

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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 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 reThe testimony authorized the jury to believe,

turned." and by their verdict they, in effect, did be

And she testified that that was intended lieve, that all of her said representations to to vary the 30 days stipulation contained in Brown in order to get his money were false the printed form, and that she meant to reand known by her and not by him, to be so

turn Brown his money if he did not accept at the time and that he relied upon them, the position. Taking the printed signed conand was thereby induced to pay her his tract and all the testimony together, it amply money, which she refused to refund.

shows that she made the said representations [1] She testified on the trial. On cross-in effect as Brown had testified she made examination, for the purpose of impeaching them, and got his money on the faith that he her, the court permitted the state to ask her, would get the position from Smith she told and she answered, that she had theretofore him was waiting for him at the salary she been charged with swindling in 10 or 15 represented, and a house free, and that, if he cases. Swindling is certainly an offense did not get that identical contract which she showing moral turpitude. This evidence was said Smith would make with him, he was admissible, as has uniformly been held by then, and not in some other contingency, to this court in a large number of cases. Mr. get his money back. It is certain that he did Branch, in his Criminal Law (section 868), not get the position; that Smith had no such so states the rules to be, and collates a con- position at all, nor at the salary she represiderable number of cases to that effect. sented he would get.

[2] She swore that she did not intend to [4] Her attorney who represented her in swindle Brown in the transaction she had this court, but who did not in the court below, with him, and that she did not intend to now contends that the evidence is insuffiswindle any other person with whom she had cient to sustain the verdict on the additional made like contracts under substantially the ground, not made in the court below, and for same kind of representations she had made the first time made in this court, to the effect to Brown. Therefore the question of her in that Brown did not testify he believed her tent in this transaction and her system in said representations to be true, and that he like transactions was material. The court relied upon them in parting with the title to therefore did not err in permitting the state his money when he paid it to her. It is true to prove over her objections several other like that Brown, in his testimony, did not use that transactions she had with different parties specific language, but, taking his testimony about the same time she had this transaction as a whole and his acts, there can be no queswith Brown; for such testimony clearly tion, and the jury was clearly authorized to tended to show what her intent was and the believe, that Brown did believe her said false system she used in such transactions. This

This representations and relied upon them, and has been so uniformly decided in this state paid her his money, based solely on his reli-and the text-books are all to the same ef- ance upon her said representations, which fect—that it seems useless to again cite the the jury was authorized to believe from the authorities, but see Branch's Criminal Law, testimony were false.

testimony were false. After a careful study § 338, where he collates a large number of of the evidence, we think that it was amply cases.

sufficient for the jury to believe therefrom [3] The only other question appellant pre- all the essential facts to authorize. her consents is her claim that the evidence is insuf- viction. The court so required the jury to ficient to sustain the verdict. Her conten- believe before they could convict her. tion and that of her attorneys on the trial The judginent will be affirmed.

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