dy, which is not sworn to and which fails to give the names of the witnesses and what he expects to prove by them, was properly overruled as being too vague and indefinite. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. 949.] portunity to obtain the same by reason of the fact that said new witnesses live at such a distance from where this defendant has been kept in custody since the trial herein, that it has been impossible for him to secure said affidavits." This motion is not sworn to by appellant, Appeal from 'District Court, Atascosa nor any other person. It will be noticed he County; F. G. Chambliss, Judge. does not give the name of the witness or witnesses, nor what he expects to prove by the witness or witnesses. Under such circumstances, there was no error in overruling C. C. McDonald, Asst. Atty. Gen., for the It was too vague and indefinite. this ground of the motion for a new trial. The judgment is affirmed. Chon Alverez was convicted of selling intoxicating liquors in prohibition territory, and he appeals. Affirmed. State. HARPER, J. Appellant was convicted of the offense of selling intoxicating liquors in prohibition territory, from which conviction he prosecutes this appeal. [1] There were no exceptions reserved to the charge of the court and no special charges requested. The only exception reserved to the introduction of testimony recites: “Jim Dillard, a witness for the state, being on the witness stand under oath as a witness, the following questions and answers ensued, it be ing redirect examination of said witness: 'Q. Jim, why did you tell me that was in January of this year? Mr. Brown: We object (No ruling noted.) Witness: I told you I didn't know. Q. What month was it? A. I don't know what month at all. Q. You know it was this year? A. Yes, sir. Q. You know it was before you came into the room-into the grand jury room. A. Yes, sir. Q. Was it before that time? A. Yes, sir. Mr. Brown: We object to these questions trying to get this witness to tell something he doesn't know. The Court: Objection is overruled. Proceed. Mr. Brown: Note our exception.' Which testimony was objected to by the defendant at the time it was offered, upon the following grounds, to wit: The witness had testified as to his utter lack of knowledge as to the month and day on which the alleged sale of liquor was consummated. The course of questioning by the district attorney was calculated to refresh the mind of the witness, if possible, without any recollection of the facts in the mind of the witness upon which to base any hope of direct knowledge in the memory of said witness. Also, the same was calculated to strengthen the witness in the minds of the jury, and to prejudice them against the defendant." Ex parte NEYLAND. (No. 3828.) (Court of Criminal Appeals of Texas. Oct. 27, 1915.) BAIL 52-AMOUNT OF BAIL-EXCESSIVE NESS. The Court of Criminal Appeals will not set aside a judgment, fixing the bail of a person indicted for murder at $5,000, where, though he produced evidence with reference to his ability to give bail, putting the maximum that he could give at $1,000, it does not appear that he has attempted to give bail in the amount fixed and failed. [Ed. Note.-For other cases, see Bail, Cent. Dig. § 209; Dec. Dig. 52.] Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Application by T. L. Neyland for admission to bail. From the judgment fixing the amount of bail, he appeals. Affirmed. Heidingsfelders, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Applicant was indicted for murder. The facts attending the homicide are not made a part of the record, and in fact the record shows the testimony was not introduced. The record shows the indictment, process, and return of the sheriff were introduced, and such documentary evidence as pertained to the cause after arrest. The judgment of the court refusing bail follows this. Applicant produced evidence with reference to his ability to give bail, putting the maximum that he could give at $1,000. There is no evidence showing that he made an attempt to give this amount of bond, and failed. The record shows that upon placing the bond at $5,000 he gave notice of appeal. As the matter stands, we are of opinion that the court would not be justified in setting aside this order of the court. If the party had not been able to give the bond, after making due and appropriate attempts, we would have a different question presented, "This defendant has found new evidence in but this is not here made to appear. In fact, support of his own testimony, and new evi- it rather appears that he made no attempt by dence to disprove the testimony of state's wit- reason of the fact that, upon the entering of Dess Jim Dillard, all of which he is willing to the judgment placing the bail at $5,000, he verify by affidavit of said witnesses, and would have their affidavits attached hereto, but for the gave notice of appeal. We suppose the thefact that he has not had the time nor the op-ory of this appeal is that $5,000, under the The witness had testified that he did not remember the day nor month. On his crossexamination appellant had sought to show that his remembrance of the occasion of the purchase was vague, and witness could not, or would not, fix the date. It is shown he was a boy, who could neither read nor write, and very illiterate. To bring the date within the period of limitation, it was permissible to show that the purchase was made some time during this year, and the testimony was not subject to the objections made. [2] In the motion for a new trial appel lant states that: circumstances, is too large. We cannot, in the state of the record, so hold. It may be that if, after due effort is made to give bail in the amount fixed, he fails, the trial judge should look into the matter and, if thought advisable, reduce the bail. As the record is presented, the judgment will be affirmed. Ex parte HENGY. (No. 3742.) influence of sudden passion" "and adequate cause," and stating that the passion cannot be a result of former provocation, that the act causing the death must be caused directly by passion from provocation then given, it not being enough that the mind is merely agitated by passion from previous or other provocation, occurring at and prior to the homicide in deterand that the jury should consider the matters mining provocation, with a further charge on murder and manslaughter, submitting the punishment, and the jury assessed the lowest punishment for manslaughter against the defendant, the charge is not reversible error as being so into thinking that defendant was offering some excuse under his right of self-defense. (Court of Criminal Appeals of Texas. Oct. 27, general and abstract as to mislead the jury 1915.) Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Habeas corpus by Louis Hengy. Prisoner remanded to custody, and he appeals. Cause dismissed. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. 340.] Appeal from District Court, Fayette County; Frank S. Roberts, Judge. Sidney Lockett was convicted of manslaughter, and appeals. Affirmed. L. D. Brown, of La Grange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted C. C. McDonald, Asst. Atty. Gen., for the of manslaughter, his punishment being asState. sessed at two years' confinement in the penitentiary. PRENDERGAST, P. J. Appellant was arThe only bill of exception in the record rested on a proper warrant issued on a com- complains of the fact that Mr. Sam Shelplaint against him from the corporation court bourne, foreman of the grand jury, was not of the city of Dallas, and was held in cus- a citizen of Fayette county, and therefore not tody by the chief of police of the city there-a competent grand juror, and, being incompeunder. He sued out before one of the district judges of Dallas a writ of habeas corpus seeking his discharge from said arrest and imprisonment. The judge heard the case and all the evidence and remanded him to the custody of the officer holding him. He thereupon appealed from the judge's order to this court and at once entered into a recognizance and was discharged from actual custody by virtue thereof. Under such circumstances, it has uniformly been held by this court that it has no jurisdiction to hear and determine any such cause. The giving bond or recognizance and discharge thereunder prevents this court from acting on the appeal. Ex parte Snyder, 39 Tex. Cr. R. 120, 44 S. W. 1108; Ex parte Talbutt, 39 Tex. Cr. R. 12, 44 S. W. 832; Ex parte Richie, 177 S. W. 85; Ex parte Harvey, 177 S. W. 1174, and cases cited in these several cases. This cause is therefore dismissed. LOCKETT v. STATE. (No. 3751.) tent, he was a person not entitled to be in the grand jury room at the time the indictment was found. It is unnecessary to discuss that question, inasmuch as the facts show that Mr. Shelbourne was a citizen of Fayette County and a qualified juror. Appellant filed exceptions to the charge at the time it was given, first, because the court did not peremptorily instruct a verdict for the defendant. It is useless to discuss that in view of the testimony. We are of opinion the court was correct in not so instructing the jury. The second exception to the charge is because it gives general and abstract propositions of law upon the subject of manslaughter, not applicable to the facts and issues, and by the giving of which in such general and abstract form the jury were misled and confused to the prejudice of the defendant, and caused them to conclude defendant was offering some excuse under his right of self-defense. The charge on manslaughter we think is not subject to the criticism. It gives the general definition of what is meant by "under the immediate influence of (Court of Criminal Appeals of Texas. Oct. 27, sudden passion" and "adequate cause," and 1915.) HOMICIDE 340- APPEAL HARMLESS ER ROR--INSTRUCTIONS. that the passion is not the result of a former provocation, and that the act causing death must be caused directly by the passion arisWhere, in a prosecution for homicide, the ing out of the provocation then given, and it court charged on self-defense and further charged on manslaughter, giving the general defini- is not enough that the mind is merely agition of what is meant by "under the immediate tated by passion arising from some other or [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2951-2953; Dec. Dig. 1128.] Davidson, J., dissenting. Appeal from District Court, El Paso County; W. D. Howe, Special Judge. Gabino Ornelas and Alfonzo Munoz were convicted of burglary, and they appeal. Af firmed. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellants were convicted of burglary, their punishment being assessed at two years' confinement in the penitentiary. previous provocation, but, in determining as I could take advantage of it, it must affirmativeto the provocation at the time, the jury ly appear that it was called to the attention of the trial court. should consider all the evidence in the case, of matters occurring at the time of the difficulty, and all matters occurring prior thereto. The court also gave the definition of "adequate cause," etc. The court charged on murder, submitting the punishment, and also on manslaughter, submitting the punishment. Take the charge as a whole, it seems to be sufficient. The court also gave a charge on self-defense, of which there is no complaint. Inasmuch as the defendant received the lowest punishment for manslaughter, and that being an issue in the case under the facts, we are of opinion there is no such error, even if the charge was not as full and specific as it might have been. Where the charge on manslaughter may be deficient in some respects, and the jury award the lowest punishment, we are of opinion the charge would not be error unless it interfered with defendant's rights to the extent of cutting off or minimizing his theory of self-defense. Had the defendant received above the minimum punishment, the charge would have been critically reviewed, but, as before stated, manslaughter being in the case, and the court having fairly presented that question, and the lowest punishment having been awarded, and in the absence of the fact that he contended it eliminated his self-defense or in any wise minimized it, we do not believe it should be cause for reversal. The other matters are mainly with reference to the sufficiency of the evidence to support the conviction. This issue was sharply This issue was sharply controverted. The state's evidence would make a case fully as high as manslaughter. That for the defendant presented the issue of self-defense. It is not the purpose of this opinion to review the testimony. The issues were made, and the jury decided them, and there is evidence which justifies the verdict. Under this view of the record, we think the judgment ought to be affirmed; and it is accordingly so ordered. 1915.) The record is before us without a statement of facts or bill of exceptions. A motion for new trial was filed on the 5th day of June, alleging that the verdict was not supported by the evidence, and was contrary to the law and the evidence as submitted to the jury. On June 21st an amended motion for new trial was filed. It is unnecessary to notice the first ground. The second ground is as follows: "Because the jury after they had received the charge they retired to their room to consider their verdict, discussed the fact that defendant Ornelas never testified in his own behalf, and considered that as a circumstance showing the guilt of the defendants herein." On the same day, June 21st, the following affidavit was filed: "Before me the undersigned authority this day after being by me duly sworn deposes and says personally appeared Luther Davenport, who that he was a juror that tried Gabino Ornelas and Alfonzo Munoz, and that after the jury had retired to the jury room to consider the evidence in said cases one of the jurors during the discussion of the evidence mentioned the fact that the defendant Ornelas did not testify in said case either in his own behalf or in the behalf of the defendant Munoz and that his failure to so show the guilt of the defendants, and this fact testify was a circumstance which tended to was discussed by different members of the jury and was considered by them in rendering the verdict herein. "[Signed] Luther Davenport." This was properly sworn to and filed on June 21st. On the same day, June 21st, the court entered this judgment: "On this day came on to be heard the mo ORNELAS et al. v. STATE. (No. 3703.) fonzo Munoz, to set aside the verdict and judgment and grant him a new trial of this cause, the said defendants Gabino Ornelas and Alfonzo Munoz being present in court, in person, and the court having heard said motion read, and being fully advised in the premises, is of the opinion that the same should be overruled. It is therefore ordered," etc. After conviction an affidavit of a juror was filed, to the effect that after retirement of the jury one of the jurors mentioned that a defendant did not testify in his own behalf or in that of the other defendant, stating that his failure was a circumstance tending to show defendants' guilt, and that the fact was discussed The writer is of the opinion that this judgby different members of the jury and considered by them in rendering the verdict. Such affida- ment should be reversed. This affidavit is vit was not attached to or made a portion of or uncontroverted, and is the only thing in the an exhibit to the motion for new trial, which record bearing on the question of the diswas overruled on the same day that the motion cussion by the jury of the failure of dewas sworn to and filed. Held, that the judgment must be affirmed, as such affidavit could fendant to testify. My Brethren are of the not be considered, since, before the defendants opinion that as this affidavit was not re AL TO CHARGE-STATEMENT OF FACTS-NE- Upon appeal in a criminal case, the action of the trial court in refusing to give special charges, as requested, cannot be reviewed, in the absence of a statement of facts. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. m 1097.] Appeal from Fisher County Court; M. A. Hopson, Judge. John Roe Dorris was convicted of wife desertion, and he appeals. Appeal dismissed. J. D. Barker, of Roby, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. ferred to in the motion for new trial, or [ 3. CRIMINAL LAW 1097-APPEAL-REFUSmade an exhibit to it explicitly, therefore it may not have been called to the attention of the trial judge, and that before appellant could take advantage of this it must affirmatively appear in some way that it was called to the attention of the court, and in this condition of the record they hold the judgment ought to be affirmed. In view of their conclusion about the matter, the judgment will be affirmed, but the writer believes that inasmuch as it is specifically alleged in the motion for new trial that the jury discussed the failure of Ornelas to testify, and that the affidavit was filed the same day as was the motion for new trial, and the court on the same day overruled it, this is sufficient evidence of the fact that it was called to his attention, and that he was aware of its existence as part of the motion for new trial. There is nothing to indicate the court did not know it, and it may be very reasonably presumed, and is in my judgment a just conclusion, that, if this affidavit had been filed after the action of the court on the motion for new trial, this record would have shown it. The district attorney certainly would not have let anything of this sort pass him, and especially as the court did not adjourn until the 26th of June, five days after the overruling of the motion for new trial. But, in obedience to the opinion of the majority, the order will be entered affirming the judgment. HARPER, J. Appellant was convicted of wife desertion, and his punishment assessed at a fine of $200 and imprisonment in the county jail for a period of six months. [1] The Assistant Attorney General moves to dismiss the appeal because the recognizance is not in compliance with the statute, and this motion must be sustained. May v. State, 40 Tex. Cr. R. 196. 49 S. W. 402; Johnson v. State, 49 S. W. 594. [2, 3] But if the recognizance was sufficient to give this court jurisdiction, the statement of facts does not show to have been presented to nor approved by the county judge, and we could not consider the paper alleged to be a statement of facts. The only complaint in the motion for a new trial relates to the failure of the court to give special charges requested. With no statement of facts we can consider, it would be impossible for us to determine whether or not they, or either of them, should have been given. The appeal is dismissed. HARPER, J. (concurring). I agree to the affirmance because the motion for new trial is sworn to by no person. The affidavit referred to in the opinion is not attached to nor made a portion of nor exhibit to the motion for new trial, but bears separate and distinct file marks, and I do not think we are authorized to consider it as a part of the motion. The order overruling the motion evi- GRUBBS v. STATE. (No. 3747.) dences no evidence or affidavit was intro- (Court of Criminal Appeals of Texas. Oct. 27, duced on the hearing of the motion. DORRIS v. STATE. (No. 3738.) CRIMINAL LAW 1915.) 1134-APPEAL-BILLS OF The only grounds in a motion for new trial were insufficiency of the evidence and improper (Court of Criminal Appeals of Texas. Oct. 27, argument by the district attorney. The motion 1915.) 1. BAIL 65 - CRIMINAL PROSECUTIONFORM. An appeal from a conviction in a criminal case will be dismissed, where the recognizance does not set forth the punishment assessed, as required by the statute. was not sworn to, and that the district attor ney used such language was verified in no way. Held, that as the only bill of exceptions in the record was reserved to the overruling of the motion for new trial, the one question for review was the alleged insufficiency of the evidence. [Ed. Note. For other cases, see Criminal [Ed. Note.-For other cases, see Bail, Cent. Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, Dig. 285: Dec. Dig. 65.1 3067-3071; Dec. Dig. 1134.] 2. CRIMINAL LAW 1099-APPEAL-RECORD -STATEMENT OF FACTS-APPROVAL BELOWNECESSITY. The statement of facts on appeal in a criminal case cannot be considered. where it fails to show a presentment to or approval by the county judge. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. 1099.] Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge. John Grubbs was convicted of crime, and he appeals. Affirmed. C. C. Parker, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of assault with intent to commit the offense of rape on a girl under 15 years of age, and his punishment assessed at 6 years' confinement in the state penitentiary. The only bill of exceptions in the record is reserved to the action of the court in overruling his application for a new trial. Consequently the only ground of the motion we can review is the one alleging the insufficiency of the testimony to support the conviction. The only other ground in the motion alleges that the district attorney used certain language in his closing address. The motion is not sworn to, and that the district attorney used such language is verified in no way. We have carefully read the evidence adduced on the trial. There is a sharp conflict in the testimony. The little girl's evidence, like that of many other children, is not entirely satisfactory, but when we take the evidence of the other witnesses in the case, we cannot say that the jury was not authorized to believe her statement that the appellant did make the attempt. An officer swears that on the occasion in question he caught appellant and the girl in a house occupied alone by him, with the door locked and a pallet on the floor. We do not deem it necessary to recite all the evidence. The judgment is affirmed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. 814.] 2. CRIMINAL LAW TION. 775-ALIBI-INSTRUC the charge, as given, directly applied the law to the facts. [Ed. Note. For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. 70.] 4. CRIMINAL LAW 792-CATTLE THEFT- ACCOMPLICE An instruction in a prosecution for cattle theft that all persons guilty of acting together in the commission of an offense are principals, as are also others present knowing the unlawful intent who aid or encourage those actually engaged, that the offense of theft is complete when the alleged thief has taken actual possession and assumed ownership of the property, and that defendant should be acquitted unless he had some connection with the original unlawful taking of the cow, was sufficient, and not objectionable for a failure to define principals or to instruct that defendant must be acquitted if shown by the evidence to be an accomplice. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. 792.] 5. LARCENY 70-CATTLE THEFT-INSTRUCTION-SUFFICIENCY. In a prosecution for cattle theft, a charge that, if defendant bought or traded for the cow, or was not connected with the original taking, he should be acquitted, coupled with a further charge on circumstantial evidence, was not objectionable for failure to charge that defendant should not be convicted if he was a receiver, and not the thief, since, under the charge, the jury were bound to find defendant not guilty if he was not connected with the original taking, even though he had received the animal with knowledge. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. 70.] Appeal from District Court, Milam County; J. C. Scott, Judge. George McAninch was convicted of cattle theft, and he appeals. Affirmed. E. A. Camp, of Rockdale, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of cattle theft; his punishment being assessed at two years' confinement in the penitentiary. [1] Exception was reserved to the court's charge on several grounds. The first was that the court erred in charging on the question of theft of the cow as the property of P. B. Hickson; it being claimed the cow did not belong to P. B. Hickson, but was the property of Lula Hickson, the wife of P. B. Hickson. The indictment contains two counts, one charging the cow to be the property of Lula Hickson, and the other charging the cow to be the property of P. B. Hick3. LARCENY 70-CATTLE THEFT-INSTRUC-son. They both testified in the case, and TION-SUFFICIENCY. A charge on alibi which told the jury that, if they had a reasonable doubt as to the presence of defendant at the time and place where the offense was committed, they should find him not guilty, sufficiently submitted the defense. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. 775.] to the want of consent on their part. There A charge in a prosecution for cattle theft, is some evidence showing that Mrs. Lula in which the defense was that the cow was received in a trade, that if the jury believed Hickson claimed the cow, and we suppose it that defendant received the cow in trade or sale, was community property, though there is or if they had a reasonable doubt thereof, they nothing said about it. These people were must acquit, was not objectionable, as failing husband and wife, and she speaks of it in to charge when a theft is completed, and that defendant must be acquitted unless he partici- the nature of a milk cow-a noted cow in pated in the actual taking as a principal; since the neighborhood where it was stolen. But |