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of Baltimore & Ohio Railway Company v. I. , expression “who shall monopolize," or of the C. C., 221 U. S. 612, 31 Sup. Ct. 621, 55 L. expression "combine or conspire with other Ed. 878. In passing upon the question that persons,” but it has withstood many attacks court said:

for uncertainty of meaning. United States “It is said that the words 'except in case of v. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 emergency' make the application of the act so L. Ed. 325; United States v. Trans-Missouri uncertain as to destroy its validity. But this argument, in substance, denies to the Legisla- Freight Ass'n, 166 U. S. 291, 17 Sup. Ct. ture the power to use a generic description, and, 540, 41 L. Ed. 1007; United States v. Joint if pressed to its logical conclusion, would prac- Traffic Association, 171 U. S. 505, 19 Sup. tically nullify the legislative authority by mak-ct. 25, 43 L. Ed. 259; Hopkins v. United ing it essential that legislation should define, without the use of generic terms, all the specific States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. instances to be brought within it. In a legal Ed. 290; Anderson v. United States, 171 U. sense there is no uncertainty. Congress, by an S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Adappropriate description of an exceptional class, has established a standard with respect to which dyston Pipe & Steel Co. v. United States, cases that arise must be adjudged.

175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. The Texas Anti-Trust Act of 1899 (Acts 136; Montague & Co. v. Lowry, 193 U. S. 38, 26th Leg. c. 146) denounces contracts and ar- 24 Sup. Ct. 307, 48 L. Ed. 608; Northern Serangements "reasonably calculated to fix and curities Co. v. United States, 193 U. S. 197, regulate the price of commodities,” etc. And 24 Sup. Ct. 436, 48 L. Ed. 679. These inthe Texas Anti-Trust Act of 1903 (Acts 28th stances serve to illustrate the futility of the Leg. c. 94) prohibits acts which “tend to fix contention that the act of the Legislature and regulate the price of commodities." which requires shelter to be provided for the Each of said acts was penal in its nature. employés of railway companies when engagThey were attacked on the ground that they ed in the construction or repair of their were vague, indefinite, and uncertain. The equipment is too vague and indefinite to be Court of Civil Appeals overruled this con-operative. We think the term "light repairs" tention in the case of Waters-Pierce Oil makes plain the intent of the Legislature, and Co. v. State, 48 Tex. Civ. App. 162, 106 s. that the industries affected by the legislaW. 918. This court denied a writ of error tion will not suffer from a failure to underin said case. The same attack was made stand its meaning, and that the courts and upon these acts in the same case before the juries will find no difficulty in determining United States Supreme Court, and their con- from the facts in each case whether the tention that the acts were vague and uncer- repairs were “light,” or otherwise. tain was overruled by that court. 212 U.

We conclude that the holding of the Court S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417. These of Civil Appeals, and of the trial court, statutes contain a greater element of uncer- should be reversed, and the cause remanded tainty than does the statute involved in the for another trial; and it is so ordered. case under consideration. . The Sherman Anti-Trust Act is not more specific than this statute, which requires the erection of sheds

ACOSTA et al. v. STATE. (No. 3762.) for repair work, and it has been many times sustained against attacks for uncertainty in (Court of Criminal Appeals of Texas. Oct. 27, meaning. That act provides that:

1915.) "Section 1. Every contract, combination in 1. CRIMINAL LAW Om 1131-APPEAL-DISMISthe form of trust or otherwise, or conspiracy, SAL. in restraint of trade or commerce among the Where, since conviction and pending appeal, several states, or with foreign nations, is hereby accused escaped from custody, the appeal will be declared to be illegal. Every person who shall dismissed. make any such contract or engage in any such [Ed. Note. For other cases, see Criminal combination or conspiracy, shall be deemed Law, Cent. Dig. $$ 2971-2979, 2985; Dec. Dig. guilty of a misdemeanor, and, on conviction 1131.] thereof, shall be punished by fine not exceeding five thousand dollars,

or by imprisonment not 2. ROBBERY ww24-PROSECUTION-EVIDENCE exceeding one year, or by both said punishments,

-SUFFICIENCY. in the discretion of the court.

Where the indictment charged that defend“Sec. 2. Every person who shall monopolize, ants made an unlawful assault on the complain, or attempt to monopolize, or combine or con- ing witness and by violence put him in fear of spire with any other person or persons, to monop- life and bodily injury and in that way robbed olize any part of the trade or commerce among him, a conviction where the death penalty was the several states, or with foreign nations, shall not assessed is warranted on proof that they be deemed guilty of a misdemeanor, and, on terrorized the witness with a razor and despoilconviction thereof, shall be punished by fine not ed him, though a razor be not a deadly weapon. exceeding five thousand dollars, or by imprison- [Ed. Note.-For other cases, see Robbery, ment not exceeding one year, or by both said Cent. Dig. $$ 32–36; Dec. Dig. Om 24.] punishments, in the discretion of the court." Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Appeal from 'District Court, Potter CounComp. St. 1913, SS 8820, 8821).

ty; Hugh L. Umphres, Judge. It contains no definition or explanation of Jesus Acosta and Samual Rosas were conthe meaning of a “contract or combination victed of robbery, and they appeal. Affirmed in the form of trust,” or of the expression as to Jesus Acosta, and appeal of Samual conspiracy in restraint of trade,” or of the Rosas dismissed.

Tex.)

GRANT v. STATE

871

J. Marvin Jones, of Amarillo, for appel- of Criminal Appeals is not ordinarily authorizlants. C. C. McDonald, Asst. Atty. Gen., for ed to reverse the judgment. the State.

[Ed. Note.

For other cases, see Criminal

Law, Cent. Dig. $$ 3074_3083; Dec. Dig. Om HARPER, J. Appellants were convicted

1159.) under an indictment charging them with rob- Appeal from Van Zandt County Court; R. bery, and their punishment assessed at five M. Lively, Judge. years' confinement in the penitentiary.

Charlie Grant was convicted of unlawfully [1] Since said conviction, and while this carrying a pistol, and he appeals. Affirmed. case was pending in this court on appeal, it

L. Davidson, of Canton, for appellant. C. is made to appear by affidavits on file that appellant Samual Rosas has escaped from C. McDonald, Asst. Atty. Gen., for the State. custody. The state's motion to dismiss the appeal as to said appellant is therefore sus, of unlawfully carrying a pistol; his punish

DAVIDSON, J. Appellant was convicted tained, and this cause dismissed as to said ment being assessed at a fine of $100. appellant Samual Rosas.

The facts are in conflict. The state made [2] There are no bills of exception in the out a case showing that appellant on two record. The special charges requested by different occasions had a pistol under cirappellant were all given; consequently, if cumstances which would not justify him in the evidence sustains the verdict, the judg. carrying it-once at a card game; and the ment as to Jesus Acosta must be affirmed. Margarito Estrada testified that the two ap- to the time of having it at the card game.

other time at a different place subsequent pellants agreed to show him the way to a barber shop; that they carried him into a filed what we suppose was intended to oper

[1] After announcement for trial appellant room, drew a razor on him, and told him toate as an application for a continuance. In hold up his hands, and when he did so they this he says he was not aware of the fact went through his pockets and took his mon- that the state would produce evidence that ey. This made a case, if the jury believed he had the pistol at the time of the card the testimony; and evidently they did believe it. Appellant contends that a razor is playing, and that he could prove by certain

named witnesses whom he alleges were presnot per se a deadly weapon. We are inclined ent at the time and place of the card game to believe that all mankind know that death who would testify he did not at that place can be inflicted by a razor in the hands of a have a pistol. The court qualifies this bill grown man. At any rate, the death penalty by stating that the case had been pending was not assessed, but only five years adjudg- for six months, and that appellant had not ed. If the razor should be held not to be a employed counsel until the day of the trial, deadly weapon, as the indictment alleged and no effort had been made to obtain any that appellants made an unlawful assault on evidence, and no process issued for witnessMargarito Estrada and by violence did put the said Estrada in fear of life and bodily in- es. This would show a want of diligence in

the preparation of his case for trial. He jury, the evidence supports the verdict.

The judgment is affirmed as to Jesus Acos- might have ascertained very readily that the ta, and the appeal is dismissed as to Samual state's witnesses would testify he had a

pistol at the card game, but if, as a matter Rosas.

of fact, he did not have the pistol at the

card game, he should have investigated the GRANT V. STATE. (No. 3756.)

matter to ascertain what the state's case (Court of Criminal Appeals of Texas. Oct. 27, would be, or upon what testimony the state 1915.)

would rely. But if his witnesses would so 1. CRIMINAL LAW 598 -- CONTINUANCE - swear, the other incident remains that he SURPRISE-DILIGENCE.

had the pistol at the house of Fred HenderIn a prosecution for unlawfully carrying son, where the state's witness Sandy Cara pistol, where the state showed that defendant had unlawfully carried a pistol once at a card michal resided. He was the main state witgame, and the other time at another place, and ness, especially as to the card game. There defendant, after announcement for trial, applied is other testimony supporting Carmichal as for a continuance on the ground that he did not to the incident at Henderson's residence. If know that the state would show that he carried the pistol at the card game, and that he the witnesses would testify as he indicated in could prove that he did not have the pistol his application with reference to the card there, in view of the pendency of the case for game, the other incident still remained. He six months, his having the pistol at another place, and the fact that he produced no testi- denies having the pistol on both occasions, mony with reference to the card game, the con- but his application for postponement on actinuance was properly denied.

count of surprise does not include the in[Ed. Note.-For other cases, see Criminal cident at the Henderson house. There is Law, Cent. Dig. $8 1335–1341; Dec. Dig. Om another weakness in this record with refer598.)

ence to this particular matter, to wit: That 2. CRIMINAL LAW Ow1159 — APPEAL - QUES- none of these witnesses were produced on TION OF FACT—CONFLICTING EVIDENCE.

Where a direct conflict in the testimony has the motion for new trial, or, rather, no testibeen decided adversely to the accused, the Court mony from any of them with reference to the card game was offered as to whether | missible on the issue of whether there was a they were there or whether the pistol was premeditated assault, whether there was a conexhibited at that particular time and place. panions to bring about the 'assault, and whether,

spiracy between defendant, W., and their comSo from any viewpoint we do not think there with a knowledge of these facts, defendant só is any particular merit in this application, conducted himself as to become a principal. and no error in the action of the court re- [Ed. Note.-For other cases, see Criminal fusing the motion for new trial.

Law, Cent. Dig. 88 989-1001; Dec. Dig. Om

423.] [2] The other bill of exceptions was reserved to the insufficiency of the testimony. 4. CRIMINAL LAW Ow423 – EVIDENCE – ACTS

AND DECLARATIONS OF CONSPIRATORS. Where there is a direct conflict in the tes- Evidence as to what W. did to the prosecuttimony, and this has been decided adversely ing witness after he ran away, pursued by W., to the accused, this court would not be au-was admissible over the objection that defendant thorized ordinarily to reverse the judgment. was not present, if he was a principal in the

commission of the offense. Appellant testified one way, and the state's

[Ed. Note.-For other cases, see Criminal witness the other, making a direct conflict, Law, Cent. Dig. S$ 989-1001; Dec. Dig. Om in regard to the fact of having the pistol at 423.) both places. There was no election asked 5. CRIMINAL LAW Omw 427 — PARTIES — Evias to which transaction the state would rely DENCE. upon, and the case went before the court assaulted party ran, pursued by W., defendant

Where the evidence showed that after the with testimony in regard to both transactions and W.'s other companions followed after them, and without objection.

and when they came up with W. and the asSo from any viewpoint we think this judg- saulted party remarked that W. ought to beat ment should be affirmed; and it is accord- such party's head off, this was a strong circum

stance tending to show that defendant was presingly so ordered.

ent and lending encouragement to W. in the commission of the assault and guilty of such

conduct as would make him principal. SOUTHALL V. STATE. (No. 3672.)

[Ed. Note.-For other cases, see Criminal

Law, Cent. Dig. S$ 1012–1017; Dec. Dig. Om (Court of Criminal Appeals of Texas. Oct. 13, 427.j 1915. Rehearing Denied Nov. 10, 1915.)

6. CRIMINAL LAW Om 419, 420 - EVIDENCE —

HEARSAY. 1. CRIMINAL LAW Omw 422_EVIDENCE-DECLA

Where an assaulted party testified that W. RATIONS OF THIRD PARTIES. Where defendant and three other boys were it was a fence rail because one was found on

beat him with a fence rail, and that he knew together when one of them made an assault, the ground the next morning with blood on it, and were also together some time prior to the but on cross-examination it appeared that he assault, and in such a position as to lead the did not go back to the scene of difficulty or see jury to believe that defendant could have and the rail, but that G. went back and found the did hear a remark made by one of the crowd rail and saw the blood, the assaulted party that they would get the prosecuting witness on should not have been permitted to testify as to his way home, such remark was admissible on what he learned from G. the question of whether defendant was a principal in the commission of the assault.

[Ed. Note.-For other cases, see Criminal

Law, Cent. Dig. 88 973-983; Dec. Dig. 419, [Ed. Note.-For other cases, see Criminal

420.) Law, Cent. Dig. $$ 984-988; Dec. Dig. Om 422.]

7. CRIMINAL LAW Cw1169-HARMLESS ERROR 2. CRIMINAL LAW O 418-EVIDENCE-DECLA

-ADMISSION OF EVIDENCE. RATIONS IN DEFENDANT'S PRESENCE.

The admission of his testimony concerning On a trial for assaulting a party while he the fence rail was not reversible error, where was on his way home in G.'s buggy, evidence G. testified to the same facts, and there was no that before starting for home G. approached him evidence to the contrary. and said, "Come on and let's go home," and [Ed. Note.-For other cases, see Criminal that the assaulted party responded, “All right," Law, Cent. Dig. SS 754, 3088, 3130, 3137–3143; was admissible over the objection that defendant Dec. Dig. Om 169.] was not present, where it appeared that he was 8. ASSAULT AND BATTERY C92—EVIDENCEnear enough that the assaulted party heard a remark made by him or one of his companions.

WEIGHT AND SUFFICIENCY.

On a trial for assault, evidence as to [Ed. Note.-For other cases, see Criminal whether defendant was a principal in the offense Law, Cent. Dig. $8963–972; Dec. Dig. Omn

or an innocent bystander held to support a ver418.]

dict of guilty. 3. CRIMINAL LAW Omm 423-EVIDENCE-DEC- Ed. Note.-For other cases, see Assault and LARATIONS OF THIRD PARTIES.

Battery, Cent. Dig. $$ 137-139; Dec. Dig. Ou Where, on a trial for assault involving a 92.] dispute as to whether defendant was

a principal in the commission of the assault by W., the evi- 9. ASSAULT AND BATTERY Cw92–EVIDENCEdence placed defendant where he could and prob

WEIGHT AND SUFFICIENCY. ably did hear arrangements for the assaulted

On a trial for aggravated assault, evidence party to ride home with G., and showed that he held sufficient to show a premeditated plan to was with W. when W. and his companions plac- waylay, an assaulted party, and that he was ed their buggies so that G. could not pass, and waylaid and a fight forced at a point selected by that, when the prosecuting witness struck w. defendant and his companions. with a plank and knocked him down, defendant

[Ed. Note. For other cases, see Assault and jerked the plank from the prosecuting witness. Battery, Cent. Dig. $$ 137-139; Dec. Dig. Om evidence that, when G. drove up to the point 92.] where the road was blocked by the buggies, W. told him to tell the prosecuting witness to get

Appeal from Johnson County Court; G. out and that he was going to whip him, was ad-1 Jay Jackson, Judge.

Tex.)

SOUTHALL V. STATE

873

Unice Southall was convicted of aggravat- appellant and the other young men were on ed assault, and he appeals. Affirmed.

the gallery of the restaurant at the time;

that Wilshire could and did hear what was Johnson & Harrell, of Cleburne, for appel said by them when the remark was made, lant. C. C. McDonald, Asst. Atty. Gen., for "We or I will get him on his way home,” the State.

and consequently appellant and those with

him were in such a position that they could, HARPER, J. Appellant prosecutes this and probably did, hear what was said. The appeal from a conviction for aggravated as- record further discloses that, when Wilshire sault. Under this record there could be no and Guiley got in the buggy and started and question that Otis Woods did make an ag- had gone about two miles, appellant, Woods, gravated assault upon M. M. Wilshire; the Hunt, and Brown were in buggies in the only contested issue in the case being wheth- forks of the road, their buggies being so er or not appellant's conduct on that occasion placed that it was impossible for Gulley to was such as to make him a principal in the drive on; that Woods asked him if Wilshire commission of the offense.

was in the buggy, and, upon being answered [1] The undisputed testimony in the case in the affirmative, said, "Tell Wilshire to get would show a number of young gentlemen out; I am going to whip him.” Appellant had attended a moving picture show at Bur- being placed by the evidence in a position leson. After the show Wilshire asked Wood where he could and probably did hear the Haynes if he knew when Miller was coming arrangements made between Gulley and Wilback. Otis Woods responded, “I don't know shire for Wilshire to accompany Gulley anything about him.” Wilshire said, “I was home, and appellant also being in company not speaking to you," when Wood cursed with Woods on Gulley's road home at the him, and invited him to go behind the stores, time the buggies were so placed that Gulley when he would whip him. It is made to ap- could not pass, and Woods said to Gulley, pear, by defendant's testimony, that at this "Tell Wilshire to get out; I am going to time appellant advised Woods to desist, and whip him," the testimony was admissible on Woods said he would if Wilshire did not want the issue of whether or not there was a preto fight. Wilshire retired into a restaurant, meditated assault, and, if there was a conand Woods, appellant, Wyatt Hunt, and Trav- spiracy between appellant, Woods, and the is Brown got together on the gallery of the other two young gentlemen to so place restaurant. Several witnesses testify, while themselves in the road as to bring it about, these four boys were together, some one and whether or not appellant, with a knowlsaid, referring to Wilshire, "We will get edge of these facts, so conducted himself at him, or I will get him on his road home.” the time of the assault as to render himself Appellant accepted the bills as filed by the a principal in the offense committed by court, and in the qualification the court says Woods.

Woods. The state's evidence would show, the evidence shows "that at the time such when Wilshire struck Woods with a plank remarks were made appellant, Otis Woods, and knocked him down, appellant jerked the Wyatt Hunt, and Travis Brown were togeth- plank from Wilshire and handed it to Woods. er in front of the restaurant, and that the Appellant admits getting the plank from remark came from the crowd so bunched up." Wilshire, but says he did not hand it to As qualified by the court, these bills present Woods; that Woods jerked it out of his hand. no error: All four were together when the The testimony objected to was properly adassault was made by Woods, and, the testi- mitted. Holden v. State, 18 Tex. App. 106; mony showing that, if appellant did not make La Grone v. State, 61 Tex. Cr. R. 170, 135 the remark himself, he was standing in such S. W. 122. proximity as to lead a jury to believe that he [4, 5] When the fight took place in the could have and did hear it, it would be ma- road, and appellant took the plank away terial testimony on the issue of whether or from Wilshire, and he either handed it to not appellant was a principal in the commis- Woods, or Woods wrenched it out of his sion of the offense.

hands and struck Wilshire, Wilshire ran, [2, 3] There are also several bills in the Woods pursuing him. Appellant objected to record objecting to the admissibility of a Wilshire testifying what Woods did to him statement made by Gulley to Wilshire while after he ran, on the ground that appellant he was in the restaurant and appellant and was not present. If appellant was a princithe other young men were on the gallery. pal in the commission of the offense, the It is made to appear by the testimony that evidence would be admissible, and, as the Wilshire, instead of going to his own home to evidence shows that appellant, Brown, and avoid a difficulty, went with Gulley in Gul- Hunt followed on after them, and the state's ley's buggy. After Wilshire had stayed in testimony would show that when they caught the restaurant for some time, Gulley ap- him with Woods and Wilshire they remarked proached him and said, “Come on and let's "that he [Woods] ought to beat your [Wilgo home,” to which Wilshire responded, “All shire's] damned head off," it would be a right." Appellant objected to this on the strong circumstance tending to show that ground that he was not present when the lan- appellant was present and lending encourage

sault, and guilty of such conduct as would Will M. Martin and Geo. W. Dupree, both make him a principal in the commission of of Hillsboro, for appellant. C. C. McDonald, the offense.

Asst. Atty. Gen., for the State. [6, 7] Wilshire testified that after he fled he got tangled in some brush, when Woods

PRENDERGAST, P. J. Appellant was conovertook him and beat him with a fence victed for passing a forged instrument, and rail; that he knew it was a fence rail be assessed the lowest punishment. The indictcause one was found on the ground the next ment is in two counts; one for forging a morning with blood on it. On cross-examina- check, the other for passing the alleged tion it appeared that Wilshire did not go forged check. The court submitted both isback to the scene of the difficulty, and did sues for a finding. The jury expressly found not see the rail, but Gulley did go back and him guilty of passing the forged instrument, find the rail and saw the blood. Wilshire thereby acquitting him of the forgery thereshould not have been permitted to testify of. There were some questions raised by the as to what he had learned from Gulley. It appellant pertaining to the charge on the was hearsay, but, inasmuch as Gulley testi- first count, but as he was acquitted on that fied to the same state of facts, and there is count, those questions, even if they had been no testimony denying this state of facts, on that issue material, pass out of the case, this does not present reversible error. If and it is wholly unnecessary to consider them. appellant had raised an issue by any testi- The state clearly proved that the alleged mony that it was not a fence rail, or that forged instrument was a forgery, and the one was not found on the ground with blood state's witness positively identified appellant on it, we might take a different view of the and swore that he had passed that identical matter.

instrument on him and that he paid him [8] Appellant's testimony would raise the therefor in goods and money. The testimony issue that he was not a principal, and was as to the second count was positive, and his an innocent bystander, who merely happen- guilt thereunder did not depend wholly on ed to be present when all these matters oc- circumstantial evidence and no charge on curred; that he in no way aided or encour-circumstantial evidence on that count should aged Woods, and did no acts and was have been given. guilty of no conduct that would make him a

Appellant requested several special charges principal. This issue was fairly and fully which the court correctly refused to give. presented in the two special charges given None of them should have been given even at appellant's request, and the jury found if they had been presented in such a way against such contention, and we would not that this court would have to consider any be authorized to disturb their finding, as

of them. the evidence offered by the state will support

The evidence shows that about a month the verdict of the jury on this and all other after the alleged forged instrument was passissues in the case.

ed A. W. White, whose name had been forg[9] Appellant contends there is no evidence ed thereto, and appellant, went to see Mr. tending to raise the issue of a premeditated Downing, the party on whom it was passed assault. We think the state's evidence would and talked with him about the facts. Downamply show a preconceived premeditated plan ing swore positively that the instrument was to waylay Gulley and Wilshire; that they passed on him one Saturday evening between were waylaid and a fight forced by Woods 4 and 6 o'clock, and that it was not at night, at a point in the road selected by Woods, ap- and he as positively and unequivocally swore pellant, Hunt, and Brown, when all four that he did not tell White and appellant on were present.

said occasion that it was passed on him at The judgment is affirmed.

night. They swore he did so tell them. Downing was the state's main witness. Ap

pellant did not express, at the time, any surPOPE v. STATE. (No. 3698.)

prise at Downing's testimony, but he swore

positively that he was not the man who pass(Court of Criminal Appeals of Texas. Oct. 27, ed on Downing said forged instrument at all, 1915.)

and that he had never been in Downing's AFFIDAVITS Om 5—AUTHORITY TO TAKE-AT

store until about a month after the alleged TORNEYS.

On motion for new trial in a criminal case offense. He did not testify where he was on the ground of newly discovered evidence, affi- during the hours between 4 and 6 o'clock on davits, made before the attorney of defendant, the evening Downing swore he passed said are invalid and cannot be considered.

forged instrument on him. Of course he [Ed. Note. For other cases, see Aflidavits, knew where he was. After the trial, he Cent. Dig. $$ 18–27; Dec. Dig. Om5.]

made a motion setting up that he was at a Appeal from District Court, Hill County; different place between said hours, and atHorton B, Porter, Judge.

tached the purported affidavits of several of G. C. Pope was convicted of passing a forg- his kinfolks to the same effect. Each of ed instrument, and he appeals. Affirmed. these affidavits were sworn to before one of

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