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elicit from her that appellant kept his gun Heidingsfelders, of Houston, for appellant. downstairs and slept downstairs. The shot John H. Crooker, Crim. Dist. Atty., and E. T. was fired from an upstairs window, and this Branch, both of Houston, and C. C. McDonevidence tended strongly to support the ald, Asst. Atty. Gen., for the State. state's theory of a preconceived killing or murder; that the appellant had taken his

HARPER, J. Appellant was tried by the gun from where it usually stayed and gone court without a jury and adjudged guilty of upstairs with it and there remained in am- soliciting and procuring a female, Margaret bush until deceased appeared in front of his Clayton, to meet and have unlawful interstore. This was material testimony adduced course with a male person. The court adby the state from the wife and in support of judged him guilty and assessed his punishits theory. This was improper, as the defend- ment at one month's imprisonment in the ant in his examination of his wife had limit-county jail, and a fine of $50. ed it solely to her relations with deceased. The only question raised that need be disAppellant objected to all the cross-examina-cussed is: Do the facts sustain the judgment tion, and any part of it being admissible. We of the court? The state introduced but one might not feel authorized to reverse the case witness, Margaret Clayton, and her testibecause of this improperly admitted testi- mony makes a case against appellant. The mony, as the exception should have pointed only question is, is she an accomplice to the out the inadmissible or objectionable part crime, for, if she is, her testimony is not of the testimony. On another trial, however, corroborated in any essential particular. In if objection is made to this portion of her fact, appellant by his testimony denies that testimony, and appellant's direct examina- he under any circumstances induced or protion embraces no more than it did on this cured Margaret Clayton to meet any man. trial, such objection should be sustained, for The facts in this case are different from the the state cannot prove a material fact by the facts in the companion case against appelwife because she has been called to testify lant, in which he was charged with solicitby the defendant on an entirely different ing and procuring Grace Johnston to meet branch of the case.

men for the purpose named, and in the case The judgment is reversed, and the cause re- wherein Joe Dooms is charged with procurmanded,

ing Grace Johnston to meet men, in this: In those two cases Grace Johnston testifies she approached appellant and Dooms and so

licited and requested them to make dates for DENMAN v. STATE. (No. 3621.) her under an agreement by which Grace (Court of Criminal Appeals of Texas. June 16. Johnston would pay them for so doing. In 1915. "Rehearing Denied Oct. 13, 1915.)

this case Margaret Clayton testifies she did

not approach appellant and solicit him to 1. CRIMINAL LAW Cm 507—PROSTITUTION Our make dates; but, when she went to the Cap

1-SOLICITATION OF FEMALE-ELEMENTS OF OFFENSE_STATUTE-"ACCOMPLICE."

itol Hotel and secured a room, appellant apUnder Pen. Code 1911, art. 498, providing proached her, and asked “if there was anythat it shall be unlawful to invite, solicit, pro- thing doing," and upon her telling him, yes, cure, or use any means for the purpose of allur, it would be all right, he proceeded to make ing or procuring any female to have unlawful sexual intercourse, the mere solicitation com- dates with men, and would come and carry pletes the offense, and the fact that the female her to the rooms of the men, or would give solicited at once consents, without persuasion, her the number of the room and she would go. does not render her an "accomplice," making requisite corroboration of her testimony for a

[1, 2] It is thus seen that in this case the conviction based solely thereon of the person woman did not instigate the crime; she was soliciting.

not the procuring cause; but appellant of [Ed. Note. For other cases, see Criminal his own motion, with the intent to commit Law, Cent. Dig. 88 1082–1096; Dec. Dig. Om the crime, if it was agreeable with the wo507; Prostitution, Cent. Dig. 88 1, 2; Dec. Dig. Owl.

If an act of inter

man, approached her. For other definitions, see Words and Phrases, course was essential to a completion of the First and Second Series, Accomplice.]

offense, it might well be contended that, even 2. PROSTITUTION 4-SOLICITATION-SUFFI

under such circumstances, she would be such CIENCY OF EVIDENCE.

a party to the crime as to require that her In a prosecution for soliciting and procur- testimony be corroborated before a convicing a female to meet and have unlawful sexual tion was authorized. But the statute makes intercourse with a male person an offense de- it an offense to "solicit and procure,” even nounced by Pen. Code 1911, art. 498, evidence though an act of intercourse should not ocheld sufficient to support a conviction.

[Ed. Note.-For other cases, see Prostitution, cur, if intervening causes should prevent the Cent. Dig. & 4; Dec. Dig. Om 4.]

sexual intercourse. For, if appellant should

solicit a woman to go with him to any place Appeal from Harris County Court, at Law; to meet a man for the purpose of engaging in C. C. Wren, Judge.

carnal intercourse, he would be guilty even Bill Denman was convicted of crime, and though the woman refused, and the fact that he appeals. Affirmed.

she consents does not make her an accom-Tex.)

MARTIN V. STATE

121

plice, for his offense was complete when he necessary to plead that which need not be provmade the solicitation. The Code provides ed, article 453, providing that the certainty re(article 498) it shall be unlawful to invite, quired in an indictment is such as will enable the

accused to plead the judgment, in bar of any solicit, procure, or use any means for the prosecution for the same offense, article 460, purpose of alluring or procuring any female providing that an indictment shall be deemed to meet a man for the purpose of having sex- sufficient which charges the offense so a person ual intercourse with him. Margaret Clayton of common understanding may know what is

meant, and article 25, providing that Code protestified:

visions shall be liberally construed. "I know the defendant, Bill Denman, who oc- [Ed. Note. For other cases, see Libel and cupies the position of porter and bell boy at slander, Cent. Dig. $8 417, 419-424, 426, 427; the Capitol hotel. He was a negro porter at Dec. Dig. Om 152.] said hotel at the time stated. On or about the 9th of January, 1915, I did go with Bill Den

Davidson, J., dissenting. man, defendant, from the place or room in which I was stopping, to another part or room

Appeal from Hamilton County Court; J. there in the Capitol hotel, Houston, Harris L. Lewis, Judge. county, Tex., for the purpose of having unlaw

Joe Martin was convicted of slander, and ful sexual intercourse with a man. Bill Denman had a conversation with me, which caused

he appeals. Affirmed. me to go to some other place or room in said

Langford & Chesley, of Hamilton, and hotel. He asked me if there was anything doing, and I told him yes, by which I meant that Ramsey, Black & Ramsey, of Austin, for I would fill dates with men up there; that is, appellant. C. C. McDonald, Asst. Atty. Gen., that I would meet them and have unlawful sex- for the State. ual intercourse with a man, not my husband. The part that defendant had with it was that he would come to my room and tell me where to PRENDERGAST, P. J. Appellant was go, tell me the number of the room to go to." convicted of slander and assessed the lowest On cross-examination she testified:

punishment. “The defendant knew I would make dates be- [1] The statement of facts and bills of excause he asked me ‘if there was anything do- ceptions were approved and filed about 75 ing,' and I told him, 'Yes.' The defendant asked me if I would meet men. I did not ask him days after the term of court at which he first; never had seen him before. He just ask- was tried had adjourned. Hence they caned me, 'Anything doing?' and I told him, 'Yes.'" not be considered.

It is thus seen she was not the instigator The only question we can review is the in this instance, not the procuring cause for sufficiency of the pleading. The prosecution the crime to be committed, and the evidence was had upon a complaint and information, does not bring this case within the rule an- the latter following the former and based nounced in the companion case and the case thereon. against Joe Dooms.

After the necessary usual allegations in The evidence not showing that she was an the first and closing parts, the information accomplice to the crime of soliciting and pro-avers that on July 1, 1914: curing, her unsupported testimony will sup

"One Joe Martin did then and there orally, port a conviction, and the judgment is af- falsely and maliciously, and falsely and wantonfirmed.

ly, impute to one Elner Stephens, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Joe Mar

tin, did then and there, in the presence and hearMARTIN v. STATE. (No. 3539.) ing of G. D. Smith, falsely, maliciously and wan(Court of Criminal Appeals of Texas. June 9, tonly say of and concerning the said Elner 1915. Rehearing Denied Oct. 13, 1915. Dis- Stephens, in substance and effect the following: senting Opinion, Oct. 14, 1915.)

That Elner Stephens was all out of shape and 1. CRIMINAL LAW Cm1092, 1099 - APPEAL old man Stephens had written him, Robison, a

that John Robison had left the country. That AND ERROR — PROCEEDINGS FOR TRANSFER LIMITATION OF TIME.

note that he, Robison, would have to marry her Statement of facts and bills of exceptions

on told him, Robison, that there was no use of his

or take a load of shot. That he, Joe Martin, had an appeal from a conviction of slander, approved going because it could be proved that others had and filed about 75 days after the term of court been there besides him, Robison. The said Joe at which accused was tried had adjourned, can- Martin meaning by the expression that Elner not be considered.

Stephens was all out of shape that the said El[Ed. Note. For other cases, see Criminal ner Stephens was pregnant; and meaning by Law, Cent. Dig. $$_2803, 2829, 2834-2861, 2866, the expression that others had been there' that 2880, 2919; Dec. Dig. 1092, 1099.]

other persons had been having carnal intercourse 2. LIBEL AND SLANDER 152 – CRIMINAL with the said Elner Stephens." RESPONSIBILITY INFORMATION SUFFI

Appellant made a motion to quash it on CIENCY. An information for slander, based on an

several grounds. We will discuss only his imputation of unchastity, which avers that "he, first. None of the others present any sufthe said J. M., did then and there

say ficient cause to quash, or to require any disof and concerning the said E. S. in substance cussion. and effect the following," and then states what accused said, using the third person "he," is not

[2] His first ground is: defective as merely alleging what accused said

"Because the information does not purport to or imported, without setting forth the language set out the language claimed to have been used used, in view of Pen. Code, art. 10, requiring by the defendant, but only purports to set out words to be taken and construed in their ordi- the substance and effect of same, whereas, under nary sense, Code Cr. Proc. art. 452, making it un- the law the exact language should be set out,

*

**

the substance thereof proven by the state, and discussed or decided any question of pleadthe effect thereof left to the court and jury.” ing. No such question was raised therein.

His able and eminent attorneys in their But in each of them was discussed a varibrief now say:

ance between the allegation and the proof, “We concede as well settled the rule many and decided only that question. times declared by this court that in a slander

Our statute (P. C. art. 10) is: case it is essential that the information or indictment set forth substantially the language fined shall be understood in that sense, though it

“Words which have their meaning specially dewhich constitutes the imputation of a want of chastity. See Conlee v. State, 14 Tex. App. be contrary to their usual meaning; and all 222; Frisby v. State, 26 Tex. App. 180 [9 s. W. words used in this Code, except where a word, 463). We do not contend that it is necessary term or phrase is specially defined, are to be takto set out the language exactly or literally. en and construed in the sense in which they are

This court has declared in the above- understood in common language, taking into concited cases, as well as in others, that it is neces- sideration the context and subject matter relasary only to set out substantially the language tive to which they are employed.' relied upon."

This but prescribes a rule for the conThere can be no question but that our law struction of the Code, which is equally, and is as stated. So that it is unnecessary to cite practically universally, applicable to “a the other cases to that effect, or discuss that word, term or phrase” used in a pleading or question at all.

other writing. Taking into consideration the Appellant in his brief further says:

context and subject-matter of the whole of "The question here involved is whether or not the pleading herein, we think there can be this rule (that 'it is necessary only to set out no question but that the phrase that "said substantially the language,' 'it is not necessary Joe Martin did then and there * * to set out the language exactly or literally') per

say mits the pleader to state what on the face of the of and concerning the said Elner Stephens, in information purports to be merely the substance substance and effect the following," could and effect of what was stated,” his contention not otherwise be "understood in common being that said conceded rule "does not mean that he (the pleader) may set out merely the language” than what it is then alleged he meaning or import of the words said."

said, was substantially what he did say, inHis contention might be conceded and yet stead of "merely what he meant or imin no way result in the information being ported." held bad, for it does not aver "merely the

Besides, we have other statutory provimeaning or import” of the words said, but sions as to what allegations are necessary to

* * That instead it avers that "he, the said Joe Mar- constitute a good pleading: tin, did then and there say, in substance and which is not necessary to prove need not be effect, the following,” then gives what he stated” in a pleading. C. C. P. art. 452. It said, using the third person, "he,” and not was unnecessary to allege the language exthe first person, "I.” In other words, appel- actly or literally, but sufficient to allege it lant would have us hold that when it is substantially only. If it had been alleged alleged that appellant said “in substance and literally, it would have been sufficient to effect” the following, then states what he have proved it substantially only.

Article 453, C. C. P., says: said, is the same as alleging that appellant "meant or imported" the following, then

“The certainty required in an indictment is

such as will enable the accused to plead the states what he meant or imported merely, judgment that may be given upon it, in bar of and not what he said. This we cannot do any prosecution for the same offense." Averring that he "in substance and effect” Article 460 is: said or did say, is by no means the same, as "An indictment for any offense against the by what it is averred he said he "merely penal laws of this state shall be deemed suffimeant or imported," a certain result or effect cient which charges the commission of the ofof his language uttered. In our opinion the manner as to enable a person of common under

fense in ordinary and concise language in such a averment is radically different from what ap- standing to know what is meant, and with that pellant contends it should be held to be, and degree of certainty that will give the defendant to hold as he contends, we think, would do notice of the particular offense with which he

is charged, and enable the court, on conviction, violence to the language used.

to pronounce the proper judgment.” As we further understand appellant's con “The provisions of this Code shall be liberally tention, it is, if the pleading had left off the construed, so as to attain the objects intended by word "effect,” and averred he (Joe Martin) and punishment of crime." Article 25, C. C. P.

the Legislature: The prevention, suppression did, etc., say "in substance" the following,

Appellant truly says, “it is not necessary then the pleading would have been good. In our opinion, averring he did say "in sub- it is necessary only to set out substantially

to set out the language exactly or literallystance and effect," ought not, and cannot reasonably, he held to mean that what is the language.” And that, and that only, was

what was done in said information. The then averred he said is "merely the meaning information was good and valid. or import” of the language actually used.

The judgment is affirmed. Neither the case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, nor Simer v. DAVIDSON, J. (dissenting). The chargState, 62 Tex. Cr. R. 514, 138 S. W. 388, men ing part of the information is as follows: tioned by appellant, have any application to One Joe Martin did then and there orally,

Tex.)

CHAMBERS v. ROBISON

123

ly impute to one Elner Stephens, then and there information does not sufficiently charge slanan unmarried female in this state, a want of der, and must be held defective. chastity, in this, to wit: He, the said Joe Martin, did then and there, in the presence and

The other questions are not discussed. hearing of G. D. Smith, falsely, maliciously and The judgment ought to be reversed, and wantonly say of and concerning the said Elner the prosecution ordered dismissed. This Stephens, in substance and effect the following: was written as the original opinion in this That Elner_Stephens was all out of shape and that John Robison had left the country.

That case, but the majority, not agreeing to it, old man Stephens had written him, Robison, a took the case and wrote an affirmance. note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin, , had told him, Robison, that there was no use of his going because it could be proved that others CHAMBERS et al. v. ROBISON, General had been there besides him, Robison.”

Land Office Com'r et al. (No. 2745.) Outside of the innuendo matters, this is (Supreme Court of Texas. Oct. 13, 1915.) the charging part of the information.

PUBLIC LANDS w 173-SALES-FORFEITURE. The attack is made in various ways upon Under Rev. St. 1911, art. 5423, providing this information, the substance of which is it that if interest due on an obligation for purdoes not sufficiently charge a violation of commissioner shall indorse on the obligation,

chase of public land remains unpaid the land the slander statute. The contention is, in “Land forfeited," and cause an entry to that order to charge the offense of oral slander effect to be indorsed on the account kept with the words used in the imputation of slan- the purchaser, and "thereupon” said land shall der must be set out, and, if this cannot be ligation, without the entry on the account, is done verbatim or exactly, then the words insufficient for a forfeiture. must be substantially set out. The tendency

[Ed. Note. For other cases, see Public Lands, not only of the decisions, but all of the text Cent. Dig. SS 544–551; Dec. Dig. Om 173.] writers, has been to hold and lay down the Original mandamus proceedings by Mrs. rule that the language used in imputation of Lillian Chambers and others against J. T. slander must be set out as used. This rule Robison, Commissioner of the General Land has been varied slightly to the extent that, Office, and others. Writ granted. where the words cannot be reproduced, they Ramsey, Black & Ramsey, of Austin, and may be substantially stated. This has been Tatum & Tatum, of Dalhart, for relators. the rule in Texas. The authorities are nu- B. F. Looney, Atty. Gen., and G. B. Smedmerous and might here be mentioned, but ley, Asst. Atty. Gen., for respondents. Geo. Mr. Branch has collated the cases in his val- P. Harris, pro se. uable work on Criminal Law, in section 602, and following sections, except those cases PHILLIPS, C. J. The case concerns a which have been decided since the publica- forfeiture by the Commissioner of the Gen. tion of his work. The case of Barnett v. eral Land Office of the sale of four sections State, 35 Tex. Cr. R. 280, 33 S. W. 340, might of public school land. The validity of the be referred to as one of the leading cases forfeiture is the only question presented for and one of the best-considered cases. It was

decision. written by Judge Hurt when he was presid

The land was originally awarded and sold ing judge of this court. The Barnett Case to J. M. Patterson. It was conveyed by was reviewed in rather an exhaustive opin- him to B. H. Park, the former husband of ion by Judge Harper in Simer v. State, 62 Mrs. Chambers and the father of the other Tex. Cr. R. 514, 138 S. W. 388, and approved. relators, who became the substitute purchasSee, also, Neely v. State, 32 Tex. Cr. R. 371, er in accordance with the law. Park died

intestate in 1906. The sale preserved its 23 S. W. 798. Where a rule has been well settled, followed, and acquiesced in by the good standing until November 1, 1913, when bench and bar, citation of numerous author- default was made in the payment of the

annual interest due upon Park's obligations to ities are not necessary, nor would it be ad

the state. visable to alter or change those decisions. I missioner on August 4, 1914, duly indorsed

Because of this default, the comNow, upon the face of this information it is clear that the language was not set out, nor office the words, “Land forfeited,” and placed

on the obligations of Park on file in his attempted to be set out either exactly or in the land upon the market for resale. It was substance. The language in charging says resold to the co-respondent, George P. Har"in substance and effect.” The effect of the ris, August 10, 1914, upon his application to language is not sufficient. The effect of the purchase. On August 12, 1914, the relators imputation is the thing to be decided. It may made written request for the reinstatement or may not impute a want of chastity. The of their claims, paying into the treasury the imputation must be found in the language it- full amount of the interest then due, for self. Sometimes when the words used are which the official receipt of the commissioner obscure, innuendo or explanatory averments was given. At no time prior to August 12, may assist the pleader, but the words must 1914, did the commissioner cause an entry be set out at least substantially, and not the of the forfeiture to be made on the account effect of the substance of the words. The in his office kept with the purchaser, Park.

As to one of the sections, such an entry had I shall be performed as a condition for the acnever been made. On the accounts for the crual of a forfeiture, it is difficult to find any other three sections, it was made, but some stable ground for holding that the perdays after the sale of the land to Harris formance of one of them is a substantial and the filing of the relators' request for re- observance of the dual requirement. There instatement.

could be no warrant for thus ignoring a plain This proceeding has for its purpose the re- provision of the statute unless it be true that instatement of the purchase of the land by the act performed clearly accomplishes all Park upon the records of the Land Office, that could have been reasonably intended by and the cancellation of its sale to Harris. the other requirement. This, in its result, If the forfeiture was invalid, the relators would mean that the requirement ignored are entitled to the writ of mandamus for was no essential part of the law, and in its which they pray, since, in that event, the administration could be dispensed with as land stood unforfeited, in law, at the time surplusage. of the transaction with Harris and the fil

Both the indorsement upon the obligation ing of the request for reinstatement; and, of the purchaser and the entry on his acno rights of third parties having intervened, count are required by the statute only as authe relators were entitled to have their thentic evidence of the forfeiture. But, claims reinstated upon the official records while this is true, the statute is clear in its upon the filing of their written request to declaration that a forfeiture does not accrue that effect and their payment into the treas- until it is thus evidenced. It should be asury of the full amount of the accrued inter- sumed that the Legislature had a purpose in est. Article 5423, Revised Statutes 1911.

extending the requirement as to the method The provision of the law governing such of evidencing the forfeiture beyond the mere forfeiture on account of default in the pay- indorsement upon the purchaser's obligation. ment of interest is that found in article 5423, It is evident that that was not deemed a and is in the following language:

sufficient authentication of the forfeiture. "If upon the first day of November of any For that reason the additional requirement year any portion of the interest due on any obligation remains unpaid, the Commissioner of that an entry to the same effect shall be the General Land Office shall indorse on such made on the account was imposed. It was obligation, 'Land forfeited,' and shall cause an intended, in other words, that the forfeiture entry to that effect to be made on the account should in this manner be doubly evidenced,

; land shall thereby be forfeited to the state with for the purpose of greater certainty and afout the necessity of re-entry or judicial ascer- fording a more permanent and enduring rectainment, and shall revert to the particular fund to which it originally belonged, and be ord. We are not at liberty to construe out resold under the provisions of this chapter, or of the statute a provision which it is maniany future laws.'

fest was written into it to accomplish a disThat a forfeiture does not accrue under tinct legislative purpose, and which it is the statute except as the result of the per- clear was regarded as necessary to completeformance by the commissioner of the acts ly effectuate that purpose. The statute is enjoined is plain. Upon the default he is not substantially complied with where only required to make the indorsement, “Land one of the requirements is observed. A subforfeited,” upon the purchaser's obligation, stantial compliance with both of them is necand, in addition, there is enjoined as his essary. duty the causing of an entry to that effect To sustain the contention that the indorseto be made on the account kept with the pur- ment in this case upon the obligation amountchaser. “Thereupon” the land

land becomes ed to a substantial observance of both re“thereby" forfeited to the state, which means, quirements of the statute, the respondents of course, that it does not become forfeited rely upon the cases of Brightman v. until these things are done. While a strict Comanche County and Hoefer v. Robison, compliance with the law in respect to the supra. Neither of these cases sustain the facts upon which the forfeiture proceeds is position. In the former the purchaser's oblirequired, the rule of decision is that an exact gation was not in the Land Office at the time and literal compliance with these provisions of the declaration of the forfeiture, and unrelating to the indorsement and entry is not der the condition of the law at that time necessary. A substantial compliance with was not required to be kept there. It was them will suffice to effect the forfeiture. in the treasurer's office, its lawful custodian; Brightman v. Comanche County, 94 Tex. 599, and it was impossible therefore for the com63 S. W. 857; Hoefer v. Robison, 104 Tex. missioner to make the indorsement upon it. 159, 135 S. W. 371. The question here is The application, affidavit, field notes, and whether, making the indorsement of forfei- receipts of the treasurer, were archives of ture upon the obligation, alone, amounts to his office, and were in his custody, contained a substantial compliance.

in the file wrapper pertaining to the purWhere a statute clearly provides that two chase. In lieu of making the indorsement distinct acts of this nature, which, though upon the obligation, the commissioner, under of the same general character, have to do this condition, made the indorsement upon

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