tually were, but what they would have appeared | ed had been writing letters to a young lady to be to a reasonably prudent man. in the community and receiving letters from [Ed. Note.-For other cases, see Homicide, her, the letters to deceased being sent to apCent. Dig. §§ 177-181; Dec. Dig. 122.] Appeal from District Court, Austin County; Frank S. Roberts, Judge. pellant for delivery. Deceased's wife hearing of those letters, deceased accused appellant of informing his wife, and he gives this Jake Brod was convicted of murder, and as a reason for their ill will. The defend he appeals. Reversed and remanded. A. G. Lipscomb, of Hempstead, J. E. Edmundson, of Bellville, Mathis, Teague & Embrey, of Brenham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of murder, and his punishment assessed at 15 years' confinement in the state penitentiary. It appears there had been a game of base ball in the afternoon; that the shooting took place at night. The state's contention is that appellant had become dissatisfied with the management of the baseball team, and had sought to break it up. Deceased, Gus Ueckert, was also a member of the team, and ill will existed between Ueckert and appellant, growing out of this matter. After the game of ball, a dance was had that night on a platform adjacent to a beer garden, ert. Then As ant's contention is that no words passed between him and deceased on the night of the shooting, and that between 11 and 12 o'clock, his father, Anton Brod, came to where he was standing and said, "Come on, Jake, let's go home," when Gus Ueckert, deceased, remarked, "You'd better take the s-n of a b--h home, else I will kill him." Anton Brod turned and said to deceased, "You can kill hell," when deceased picked up a beer glass and drew it back as if to strike, when Anton Brod caught deceased's hand with one of his hands and pulled his pistol with the other. As he pulled his pistol, Ed Ueckert grabbed the hand with the pistol in it, and Anton Brod and Ed Ueckert went down, Ed Ueckert having the hand with the pistol under him; that Gus Ueckert then jumped on Anton Brod and struck him, when appellant rushed up and cut Gus Ueckand appellant and deceased were both at Gus Ueckert grabbed a bottle and this dance, and the state's evidence is that, threw it at appellant, when, as appellant while deceased, Ed Ueckert, and Roman contends, Gus Ueckert drew a knife, got on Michalski were drinking soda water, appel- his father, Anton Brod, and began cutting at lant approached them and said, "You want his father, when he, appellant, shot. to fight, you Gd dd bastard?" when he shot, all parties parted, and Gus Ueckert, deceased replied, "Jake, I don't want to have deceased, went to his father-in-law's house, anything to do with you," when, with a some hundred yards distant. Thus, it is knife in his hand, he approached deceased seen the evidence is in sharp conflict, both and said, "You G-d dd sn of a as to the origin of the fatal difficulty and bh." Ed Ueckert here interfered and the events immediately preceding the shootcarried appellant to his father, Anton Brod ing. There are a number of bills of excep(who was constable of the precinct), and tion in the record, but we do not deem it asked him to make appellant behave. Apnecessary to discuss but three of them, as pellant's father said something to his son the others present no error. about behaving, but almost immediately [1] The first bill we will mention is the went to where deceased was standing, one wherein it is shown that shortly after caught him in the collar and said, "I am the shooting of Gus Ueckert by Jake Brod tired of you calling my boy s -ns of and after the parties fighting had all been • b--hes; I didn't raise no ssn of a separated, the state was permitted to show b- -h, Gd d-n you." Deceased re- that Anton Brod, father of appellant, cursed plied, "Mr. Brod, don't hit me." Anton Brod and very violently abused Roman Michalski. responded, "I will, Gd d-n you," pull- This evidence seems to have been admitted ing his pistol. As he pulled his pistol, Ed on the ground that it occurred so soon after Ueckert grabbed his arm, and Anton Brod the difficulty in which appellant shot Gus and Ed Ueckert went down, Ed Ueckert Ueckert that it was res gestæ of that transfalling on his face, but having the hand action. If it was appellant doing the curswith the pistol under him, Anton Brod be- ing and committing the acts towards Miching at his side and over him. Michalski alski, we would agree with the trial court, and Gus Ueckert caught hold of Anton Brod, but Anton Brod was not on trial, and ceras they say, to pull him off and prevent him tainly appellant cannot be held responsible shooting. Appellant Jake Brod rushed up for the acts of his father towards a third and cut Gus Ueckert in the shoulder with person after the difficulty in which he did a knife, retreating after he had done so. the shooting was over. The acts and conGus Ueckert grabbed a soda water bottle duct of appellant might throw light on his and threw it at Jake Brod, when Jake Brod previous acts, but the acts and conduct of drew a pistol and shot him, inflicting a fatal his father could not do so. We are of the wound. opinion that the court should have sustained The defendant's contention is that deceas- the objection to the acts and conduct of ap pellant's father toward Roman after the shooting was over. Michalski | ground that he committed the act in defense of another (in this instance in defense of [2] In another bill, it is shown that Mr. his father) can use no greater force than Mathis, attorney for defendant, had com- seems to him necessary to accomplish that mented on the fact that the record disclosed purpose. If Anton Brod was in no danger that the state had had the venue of this of losing his life or suffering serious bodily case changed from Waller to Austin county, injury, appellant would have no right to and remarked that this was not fair to de-kill in his defense. He would only have the fendant; that he should have been tried in Waller county, where both appellant and deceased had been raised. As the record had been introduced showing the change of venue to have been made, appellant's counsel could comment on that evidence, and state's counsel could also reply to such argument and comment on any fact in evidence, but state's counsel should not have been permitted to go outside of the record, and say "that the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there." There was no evidence in the record upon which to base such statement. Again, state's counsel said, in commenting on the testimony of Anton Brod, "That old man Brod went over to Richmond to help get a murderer out." Anton Brod testified to material facts for appellant, and, if his testimony was true, it would tend to show that appellant killed deceased to save his, Anton Brod's, life. Upon objection being made, the court instructed the jury not to consider the last remark, but refused to instruct the jury not to consider the remark about the history of Waller county, stating they turned murderers loose over there. Counsel for the state may always comment on the testimony and draw legitimate deductions therefrom, but in their zeal they should not get outside the record and inject new and prejudicial matter into the case. [3] The only other bill we deem it necessary to discuss is the one complaining of the charge of the court in instructing the jury: "The resistance which the person about to be injured may make to prevent the commission of the offense must be proportioned to the injury about to be inflicted. It must be only such as is necessary to repel the aggressor. If the person about to be injured uses a greater amount of force to resist such injury than is necessary to repel the aggressor and protect his own person, he is himself guilty of an illegal act, according to the nature and degree of force which he has used, but in all cases the matter is to be viewed from the defendant's standpoint. Any person, other than the party about to be injured, may also, by the use of necessary means, prevent the commission of the offense, and the same rules which regulate the conduct of the person to be injured in repelling the aggression are also applicable to the conduct of him who interferes in behalf of such person. He may use a degree of force proportionate to the injury about to be inflicted, and no greater." It is contended that this is too much limitation to place upon appellant's right of self-defense. It is the law of this state that one who seeks to justify his act on the right to use such force as was necessary to repel the aggressive act, or acts. According to the state's evidence, Anton Brod was in no danger of death or suffering serious bodily injury. Ed Ueckert grabbed the hand in which Anton Brod had the pistol to keep him from shooting his brother; and the acts and conduct of Gus Ueckert and the others were done to keep Anton Brod from injuring Ed Ueckert after he had gotton him down, thus authorizing a finding by the jury that Anton Brod was in no danger at the time the fatal shot was fired, and from the verdict they evidently so found. While this is the law, yet it is also the law that a jury must view the circumstances as it appeared to appellant at the time. Not that they must accept his version, but they must take all the evidence and pass on the question of how it then, at the time of the difficulty, would appear to a reasonable person situate as was appellant. If from all the facts and circumstances it reasonably appeared to appellant that deceased was on his father, cutting at him with a knife, thereby endangering the life of his father, he would be justified in slaying to save the life of his father. The charge as given herein, we think, is too restrictive, and should be so drawn on another trial as to present clearly that, if it reasonably appeared to defendant at the time he shot that the life of his father was in danger, or he was in danger of suffering serious bodily injury, he would be guilty of no offense. And this question should not be passed on as it appeared to the jury from the evidence, but as the jury believed it appeared to defendant at the time he acted. The case is reversed, and the cause remanded. GREEN v. STATE. (No. 3737.) (Court of Criminal Appeals of Texas. Nov. 10, 1915.) - 1. CRIMINAL LAW 1092, 1102- APPEAL STATEMENT OF FACTS AND BILLS OF EXCEPTION-TIME FOR FILING. Where the term at which a criminal trial occurred adjourned on May 15th, a statement of facts filed July 29th, and bills of exception filed the next day, would be stricken and not considered. Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; [Ed. Note. For other cases, see Criminal Dec. Dig. 1092, 1102.] 2. CRIMINAL LAW 27-FELONIES AND MISDEMEANORS INTOXICATING LIQUORS. Under Acts 31st Leg. c. 35, providing that if any person shall sell any intoxicating liquor in any territory in which the sale of intoxicating liquors "has been prohibited" he shall be punish-, the sale of intoxicating liquor has been pro ed by confinement for not less than one nor more hibited under the laws of this state," he than three years, and Pen. Code 1911, art. 597, shall be guilty of a misdemeanor, punishable providing that if any person shall sell any intoxicating liquor in any county, etc., in which by fine of not less than $25 nor more than the sale of intoxicating liquor "has been prohib- $100, and by imprisonment in the county jail ited," he shall be punished by fine and imprison- for not less than 20 nor more than 60 days; ment for not less than 20 nor more than 60 days, and if any person shall sell any intoxicat- and, in the second clause of said article, ing liquor in any county, etc., in which the sale made it a felony for any person to sell in proof intoxicating liquor "shall hereafter be pro- hibition territory "in which the sale of intoxhibited," he shall be punished by imprisonment icating liquors shall hereafter be prohibited in the penitentiary for not less than one nor more than three years, it is a misdemeanor only under the laws of this state." to sell intoxicating liquors in territory where prohibition had been adopted prior to the act of 1909, and a felony to make such a sale in territory where prohibition was subsequently adopted, and there is no conflict between the two clauses of article 597. [1] The term of court at which this trial occurred adjourned on May 15, 1915. The statement of facts was not filed until July 29, following, and the bills of exceptions the next day. Hence the Assistant Attorney General's motion to strike all these out and not consider them must be sustained. Without these, the only question raised which we can consider is to the jurisdiction of the county court. [2] This prosecution was begun by complaint and information in the county court. The information alleges that the prohibition election in said county was ordered by the commissioners' court on March 16, 1907; that the election for prohibition carried; and thereupon the commissioners' court passed an order declaring the result and prohibiting the sale of intoxicating liquors in said county; that such order was published for four successive weeks as required by law; and that this offense was committed on October 4, 1912. Prior to the Acts of 1909, p. 356, it was a misdemeanor only to sell intoxicating liquors in prohibition territory. Said act of 1909 made it a felony to sell in such territory. The revisers in 1911, in the first clause of article 597, P. C., which was enacted and adopted by the Legislature of that year, provided that, if any person shall sell intoxicating liquors in prohibition territory "in which It has been the uniform holding of this court in many cases, since the said act of 1909 was passed and the Revised Statutes adopted, that, as stated in said article 597, it was a misdemeanor only to make an illegal sale of intoxicating liquors in prohibition territory where prohibition had been adopted prior to the act of 1909, and a felony where adopted since the act of 1909, and that there is no conflict between the clauses of article 597; the first making it a misdemeanor and the latter a felony. So that, in this case, appellant's contention that the two clauses of the act conflict, and in effect therefore that neither, or only the felony clause, is in force, and also his contention that the county court had no jurisdiction, cannot be sustained. Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656; Mealer v. A new trial, after conviction of assault to rape a child under 15 years of age, will not be granted on the ground of newly discovered testimony of a physician, who had examined the child within 48 hours of the time of the alleged assault, and found no bruises about the child's person, for the assault may have occurred without any injury to the child. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. 945.] Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Willie Mays was convicted of crime, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of assault to rape, his punishment being assessed at five years' confinement in the penitentiary. There is nothing in the record that requires revision. There is neither a statement of facts nor bill of exceptions forwarded to this court. There is an affidavit of newly discovered testimony, but it is very [ indefinite and hardly tangible from any viewpoint, and especially so in the absence of the evidence. It shows that Dr. Gilbert made such affidavit in effect that he examined the alleged injured girl, who was under 15 years of age, within 48 hours of the time of the alleged assault, and found no bruises or anything that indicated rape about, her private parts. Dr. Gilbert testified, on the trial and it is so manifested by the motion for new trial; but, even if he had not, the jury only having convicted appellant of assault to rape, the fact there was no bruises about her person would be of very small value. The assault may have occurred without ever having injured her private parts. As the record is presented, the judgment will be affirmed, and it is, accordingly, so ordered. COHEN v. STATE. (No. 3715.) His second contention is that the court erred in refusing to give, among others, his special charge to the effect that, if the jury believed from the evidence that upon inquiry made of him he first answered to the deputy game warden that the deer's hide was for sale, but that at said time he was not in possession of it, but it was in possession of A. Cohen & Co., and that he had no authority to sell said hide, and after learning from the manager of said firm that it could not be sold, so told the officers seeking to buy it, or, if they have a reasonable doubt as to his guilt under this phase of the case, to acquit him. Without reciting it, the evidence pertinently raised this issue, and we think the court committed reversible error in failing and refusing to give in substance, said charge. On another trial, if the testimony substantially raises this issue as it did in the former trial, the court should not only give the said charge substantially as asked by appellant, but should also in behalf of the state give the converse of the (Court of Criminal Appeals of Texas. Nov. 10, proposition; that is, that if appellant was 1915.) GAME 9-PROSECUTION-INSTRUCTIONS. In a prosecution under Act March 13, 1911 (Acts 32d Leg. c. 60) § 5, for having in his possession for the purpose of sale and for offering to sell the hide of a wild deer killed in the state, where the evidence raised the issue as to whether defendant first told the game warden that the hide was for sale, but that he was not then in possession of it, but it was in possession of his employer, and that he had no authority to sell it, and, after learning from his employer that it could not be sold, so informed the officers seeking to buy it, the refusal to instruct that, if the jury so found, they should acquit, was reversible error; and the court should have instructed conversely for the state that, if defendant was in possession of the hide with authority to sell it, and offered it for sale, even though a mere employé of another, he would be guilty. [Ed. Note.-For other cases, see Game, Cent. Dig. §9; Dec. Dig. 9.] in possession of the hide, and had authority to sell it, and offered it for sale, even though he was a clerk or mere employé of A. Cohen & Co., then he would be guilty under the law. We do not intend to give the verbiage of the charge, but merely the issue to be submitted. For the error pointed out, the judgment is reversed, and the cause remanded. - OPERATION OF AUTOMOBILES JITNEY POWER TO REGULATE. Appeal from Bexar County Court; Nelson Leg. c. 2), providing that the mayor and counLytle, Judge. William Cohen was convicted of having in his possession for the purpose of sale and for offering to sell a hide of a wild deer killed in the state, and he appeals. Reversed and remanded. Davies & Davies, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen. for the State. PRENDERGAST, P. J. Under section 5 of the act approved March 13, 1911, appellant was convicted for having in his possession for the purpose of sale and for offering to sell one deer hide of a wild deer killed in the state. There are but two questions necessary to pass upon in the disposition of this case: First, the appellant claims that the evidence is insufficient to sustain the conviction. We have carefully read the statement of facts, and cannot so hold. Under Austin city charter (Sp. Acts 31st cilmen shall have all the legislative, executive, and judicial powers granted, that the council nay adopt ordinances not inconsistent with the Constitution and statutes, and shall have exclusive control over streets, and power to regulate the use of same, and to regulate the speed and handling of automobiles, the city could enact and enforce such reasonable ordinances as handling of automobiles, including jitneys, and it deemed necessary and proper to regulate the the use of streets by a person owning and operating the same in the carriage of passengers for hire. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. 703.] LEGISLATION USE OF 2. CONSTITUTIONAL LAW 207, 208-CLASS ORDINANCES STREETS-REGULATION OF JITNEYS. An ordinance regulating the operation of jitneys on the streets and requiring a license and a bond as a condition precedent thereto, was not objectionable as class legislation in violation of Const. art. 1, § 3, and Const. U. S. Amend. 14, where it applied to all jitneys alike, tem and other automobiles and vehicles carrythough it did not apply to the street car sys ing passengers for hire; jitneys being a class within themselves distinct from such other tion, the burden is on him to establish his conmodes of conveyance for hire. tention. [Ed. Note.-For other cases, see Constitution- [Ed. Note.-For other cases, see Municipal al Law, Cent. Dig. §§ 625-677; Dec. Dig. Corporations, Cent. Dig. § 257; Dec. Dig. 207, 208.] 121.] 3. MUNICIPAL CORPORATIONS 703-STREETS -JITNEY ORDINANCE-VALIDITY-CREATION OF LIABILITY. A provision of an ordinance requiring, as a prerequisite to a license to operate a jitney, that the owner file with the city an indemnity bond for $5,000, conditioned that the licensee should pay any judgment rendered against him to the extent of $2,500 for injury to, or death of, any person, or injury to the property of another, and to the extent of $5,000 for like injuries in one accident to more than one person, and further conditioned to hold the city harmless from all claims resulting to it from the granting of such license, was not objectionable as an attempt to create on behalf of strangers to the licensee and licensor a liability against the licensee or his bondsmen. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. 703.] 4. MUNICIPAL CORPORATIONS 121-ORDI NANCES-VALIDITY-RIGHT TO OBJECT. Davidson, J., dissenting. M. Bogle was arrested for operating a jitney without the license required by ordinance of the city of Austin, and brings habeas corpus. Relator remanded to custody. E. T. Moore, of Austin, for appellant. E. C. Gaines, of Austin, Special Counsel, J. Bouldin Rector, City Atty., and H. B. Barnhart, Asst. City Atty., both of Austin, and C. C. McDonald, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. In vacation Mr. Bogle applied to one of the judges of this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty under a capias issued by the corporation by the chief of police of the city of Austin court on a complaint filed therein August 21, 1915, charging him with that day operating a jitney on one of the public streets of the city without having a license in violation of the ordinance making it an it an offense to do so, and seeking his discharge from said claimed illegal arrest and detention. [Ed. Note.-For other cases, see Municipal writ was granted and the cause set for hearCorporations, Cent. Dig. § 257; Dec. Dig. ing before this court in term time. The re121.] Where an ordinance prescribed a license fee of $50 per annum for each jitney holding five or less, and of $75 for a seating capacity of not over seven, but more than five, and of $100 for a seating capacity of more than seven, the owner of a jitney who came within the $50 class only could not question the validity of the provisions for $75 and $100 li cense fees. [Ed. Note.--For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.] 7. MUNICIPAL CORPORATIONS NANCES-RIGHT TO OBJECT. Where a jitney owner had not attempted to procure a license and been refused, he could not object that the ordinance requiring licenses was invalid because it clothed the city with arbitrary power to grant or refuse a license, though all the fees were paid and all the requirenents of the ordinance complied with. The lator, Bogle, contends that said ordinance is unconstitutional, invalid, and void on various grounds. The attacked ordinance was enacted July 6, 1915, and on its face clearly appears to be regulatory only in all of its provisions and as a whole. Long before its enactment the city had in force another permit ordinance requiring every person running any automobile on its public streets to apply to and get from its clerk a permit to do so, and requiring the payment of a fee of 50 cents therefor, and that the number of his machine be properly placed thereon. Mr. Bogle had complied with that ordinance. The city also had another drivers' ordinance, in effect, requiring every person who engaged in the business of carrying passengers for hire in any automobile within its limits, in addition to said permit, to get a driver's license from it, and, when granted, to pay the city tax Mr. Bogle collector a fee of $2 therefor. had also complied with that ordinance. It is agreed herein that about 1,800 persons had taken out said permits, and that 95 of these had taken out said $2 driver's license, but that no person had applied for [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig. license under said jitney ordinance, and that 121.] 8. MUNICIPAL CORPORATIONS 121 - EvIDENCE-BURDEN OF PROOF-UNREASONABLENESS OF ORDINANCE. Where a jitney owner charged with violating an ordinance by running a jitney without a license complains in habeas corpus by him that requirements of the ordinance that he pay a license fee and give bond amount to a prohibi Mr. Bogle had in no way complied therewith, and had no license thereunder. It is also agreed that there was "a further class of vehicles" permitted to operate in carrying persons in the city under its ordinance designated as "any hack, omnibus, * * * or other vehicle of any |