"It is said that the words 'except in case of emergency' make the application of the act so uncertain as to destroy its validity. But this argument, in substance, denies to the Legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define, without the use of generic terms, all the specific instances to be brought within it. In a legal sense there is no uncertainty. Congress, by an appropriate description of an exceptional class, has established a standard with respect to which cases that arise must be adjudged." 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 v. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; United States v. Trans-Missouri Freight Ass'n, 166 U. S. 291, 17 Sup. Ct. 540, 41 L. Ed. 1007; United States v. Joint Traffic Association, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259; Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290; Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136; Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608; Northern Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. These instances serve to illustrate the futility of the contention that the act of the Legislature which requires shelter to be provided for the employés of railway companies when engaged in the construction or repair of their equipment is too vague and indefinite to be operative. We think the term "light repairs" makes plain the intent of the Legislature, and that the industries affected by the legislation will not suffer from a failure to understand its meaning, and that the courts and juries will find no difficulty in determining from the facts in each case whether the repairs were "light," or otherwise. The Texas Anti-Trust Act of 1899 (Acts 26th Leg. c. 146) denounces contracts and arrangements "reasonably calculated to fix and regulate the price of commodities," etc. And the Texas Anti-Trust Act of 1903 (Acts 28th Leg. c. 94) prohibits acts which "tend to fix and regulate the price of commodities." Each of said acts was penal in its nature. They were attacked on the ground that they were vague, indefinite, and uncertain. The Court of Civil Appeals overruled this contention in the case of Waters-Pierce Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918. This court denied a writ of error in said case. The same attack was made upon these acts in the same case before the United States Supreme Court, and their contention that the acts were vague and uncertain was overruled by that court. 212 U. S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417. These statutes contain a greater element of uncertainty than does the statute involved in the case under consideration. The Sherman Anti-Trust Act is not more specific than this statute, which requires the erection of sheds for repair work, and it has been many times sustained against attacks for uncertainty in meaning. That act provides that: We conclude that the holding of the Court of Civil Appeals, and of the trial court, should be reversed, and the cause remanded for another trial; and it is so ordered. ACOSTA et al. v. STATE. (No. 3762.) (Court of Criminal Appeals of Texas. Oct. 27, 1915.) SAL. Where, since conviction and pending appeal, accused escaped from custody, the appeal will be dismissed. "Section 1. Every contract, combination in 1. CRIMINAL LAW 1131-APPEAL-DISMISthe form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not 2. ROBBERY exceeding one year, or by both said punishments, in the discretion of the court. "Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." Act July 2, 1890. c. 647, 26 Stat. 209 (U. S. Comp. St. 1913, §§ 8820, 8821). It contains no definition or explanation of the meaning of a "contract or combination in the form of trust," or of the expression "conspiracy in restraint of trade," or of the [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. 1131.] -SUFFICIENCY. 24-PROSECUTION-EVIDENCE Where the indictment charged that defendants made an unlawful assault on the complaining witness and by violence put him in fear of life and bodily injury and in that way robbed him, a conviction where the death penalty was not assessed is warranted on proof that they terrorized the witness with a razor and despoiled him, though a razor be not a deadly weapon. [Ed. Note. For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. 24.] Appeal from 'District Court, Potter County; Hugh L. Umphres, Judge. Jesus Acosta and Samual Rosas were convicted of robbery, and they appeal. Affirmed as to Jesus Acosta, and appeal of Samual Rosas dismissed. J. Marvin Jones, of Amarillo, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellants were convicted under an indictment charging them with robbery, and their punishment assessed at five years' confinement in the penitentiary. [1] Since said conviction, and while this case was pending in this court on appeal, it is made to appear by affidavits on file that appellant Samual Rosas has escaped from custody. The state's motion to dismiss the appeal as to said appellant is therefore sustained, and this cause dismissed as to said appellant Samual Rosas. of Criminal Appeals is not ordinarily authorized to reverse the judgment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.] Appeal from Van Zandt County Court; R. M. Lively, Judge. Charlie Grant was convicted of unlawfully carrying a pistol, and he appeals. Affirmed. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of unlawfully carrying a pistol; his punishment being assessed at a fine of $100. The facts are in conflict. The state made out a case showing that appellant on two different occasions had a pistol under circarrying it once at a card game; and the cumstances which would not justify him in other time at a different place subsequent to the time of having it at the card game. [2] There are no bills of exception in the record. The special charges requested by appellant were all given; consequently, if the evidence sustains the verdict, the judgment as to Jesus Acosta must be affirmed. Margarito Estrada testified that the two appellants 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 to ate 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 This made a case, if the jury believed he had the pistol at the time of the card the testimony; and evidently they did be-playing, and that he could prove by certain lieve it. Appellant contends that a razor is not per se a deadly weapon. We are inclined to believe that all mankind know that death can be inflicted by a razor in the hands of a grown man. At any rate, the death penalty was not assessed, but only five years adjudg ed. named witnesses whom he alleges were present at the time and place of the card game who would testify he did not at that place have a pistol. The court qualifies this bill by stating that the case had been pending for six months, and that appellant had not employed counsel until the day of the trial, and no effort had been made to obtain any evidence, and no process issued for witness If the razor should be held not to be a deadly weapon, as the indictment alleged that appellants made an unlawful assault on Margarito 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. 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 Rosas. GRANT v. STATE. (No. 3756.) He pistol at the card game, but if, as a matter of fact, he did not have the pistol at the card game, he should have investigated the 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.) 1. CRIMINAL LAW 598--CONTINUANCESURPRISE-DILIGENCE. In a prosecution for unlawfully carrying a pistol, where the state showed that defendant had unlawfully carried a pistol once at a card game, and the other time at another place, and defendant, after announcement for trial, applied for a continuance on the ground that he did not know that the state would show that he carried the pistol at the card game, and that he could prove that he did not have the pistol there, in view of the pendency of the case for six months, his having the pistol at another place, and the fact that he produced no testimony with reference to the card game, the continuance was properly denied. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. 598.1 2. CRIMINAL LAW 1159-APPEAL-QUESTION OF FACT-CONFLICTING EVIDENCE. Where a direct conflict in the testimony has been decided adversely to the accused, the Court would rely. But if his witnesses would so Swear, the other incident remains that he had the pistol at the house of Fred Henderson, where the state's witness Sandy Carmichal resided. He was the main state witness, especially as to the card game. There is other testimony supporting Carmichal as to the incident at Henderson's residence. If the witnesses would testify as he indicated in his application with reference to the card game, the other incident still remained. He denies having the pistol on both occasions, but his application for postponement on account of surprise does not include the incident at the Henderson house. There is another weakness in this record with reference to this particular matter, to wit: That none of these witnesses were produced on the motion for new trial, or, rather, no testimony 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 exhibited at that particular time and place. So from any viewpoint we do not think there is any particular merit in this application, and no error in the action of the court refusing the motion for new trial. premeditated assault, whether there was a conpanions to bring about the assault, and whether, spiracy between defendant, W., and their comwith a knowledge of these facts, defendant so conducted himself as to become a principal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. 423.] [2] The other bill of exceptions was reserved to the insufficiency of the testimony. 4. CRIMINAL LAW 423-EVIDENCE-ACTS Where there is a direct conflict in the testimony, and this has been decided adversely to the accused, this court would not be authorized ordinarily to reverse the judgment. Appellant testified one way, and the state's witness the other, making a direct conflict, in regard to the fact of having the pistol at both places. There was no election asked as to which transaction the state would rely upon, and the case went before the court with testimony in regard to both transactions and without objection. So from any viewpoint we think this judgment should be affirmed; and it is accordingly so ordered. Oct. 13, SOUTHALL v. STATE. (No. 3672.) (Court of Criminal Appeals of Texas. 1915. Rehearing Denied Nov. 10, 1915.) 1. CRIMINAL LAW 422-EVIDENCE-DECLARATIONS OF THIRD PARTIES. Where defendant and three other boys were together when one of them made an assault, and were also together some time prior to the assault, and in such a position as to lead the jury to believe that defendant could have and did hear a remark made by one of the crowd that they would get the prosecuting witness on his way home, such remark was admissible on the question of whether defendant was a principal in the commission of the assault. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. 422.] 2. CRIMINAL LAW 418-EVIDENCE-DECLARATIONS IN DEFENDANT'S PRESENCE. On a trial for assaulting a party while he was on his way home in G.'s buggy, evidence that before starting for home G. approached him and said, "Come on and let's go home," and that the assaulted party responded, "All right," was admissible over the objection that defendant was not present, where it appeared that he was near enough that the assaulted party heard a remark made by him or one of his companions. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 963-972; Dec. Dig. 418.] 3. CRIMINAL LAW 423-EVIDENCE-DEC LARATIONS OF THIRD PARTIES. Where, on a trial for assault involving a dispute as to whether defendant was a principal in the commission of the assault by W., the evidence placed defendant where he could and probably did hear arrangements for the assaulted party to ride home with G., and showed that he was with W. when W. and his companions placed their buggies so that G. could not pass, and that, when the prosecuting witness struck W. with a plank and knocked him down, defendant jerked the plank from the prosecuting witness, evidence that, when G. drove up to the point where the road was blocked by the buggies, W. told him to tell the prosecuting witness to get out and that he was going to whip him, was ad AND DECLARATIONS OF CONSPIRATORS. Evidence as to what W. did to the prosecuting witness after he ran away, pursued by W., was admissible over the objection that defendant was not present, if he was a principal in the commission of the offense. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. 423.1 5. CRIMINAL LAW 427-PARTIES - EVIDENCE. assaulted party ran, pursued by W., defendant and W.'s other companions followed after them, and when they came up with W. and the assaulted party remarked that W. ought to beat such party's head off, this was a strong circumstance tending to show that defendant was present and lending encouragement to W. in the commission of the assault and guilty of such conduct as would make him principal. Where the evidence showed that after the [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. 427.] 6. CRIMINAL LAW 419, 420-EVIDENCEHEARSAY. Where an assaulted party testified that W. beat him with a fence rail, and that he knew it was a fence rail because one was found on the ground the next morning with blood on it, but on cross-examination it appeared that he did not go back to the scene of difficulty or see the rail, but that G. went back and found the rail and saw the blood, the assaulted party should not have been permitted to testify as to what he learned from G. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. 419, 420.1 7. CRIMINAL LAW 1169-HARMLESS ERROR -ADMISSION OF EVIDENCE. The admission of his testimony concerning the fence rail was not reversible error, where G. testified to the same facts, and there was no evidence to the contrary. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. 1169.] 8. ASSAULT AND BATTERY WEIGHT AND SUFFICIENCY. 92-EVIDENCE On a trial for assault, evidence as to whether defendant was a principal in the offense or an innocent bystander held to support a verdict of guilty. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. 92.] 9. ASSAULT AND BATTERY 92—EVIDENCE— WEIGHT AND SUFFICIENCY. On a trial for aggravated assault, evidence held sufficient to show a premeditated plan to waylay an assaulted party, and that he was waylaid and a fight forced at a point selected by defendant and his companions. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. 92.] Appeal from Johnson County Court; G. Jay Jackson, Judge. Unice Southall was convicted of aggravat- | appellant and the other young men were on ed assault, and he appeals. Affirmed. Johnson & Harrell, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant prosecutes this appeal from a conviction for aggravated assault. Under this récord there could be no question that Otis Woods did make an aggravated assault upon M. M. Wilshire; the only contested issue in the case being whether or not appellant's conduct on that occasion was such as to make him a principal in the commission of the offense. [1] The undisputed testimony in the case would show a number of young gentlemen had attended a moving picture show at Burleson. After the show Wilshire asked Wood Haynes if he knew when Miller was coming back. Otis Woods responded, "I don't know anything about him." Wilshire said, "I was not speaking to you," when Wood cursed him, and invited him to go behind the stores, when he would whip him. It is made to appear, by defendant's testimony, that at this time appellant advised Woods to desist, and Woods said he would if Wilshire did not want to fight. Wilshire retired into a restaurant, and Woods, appellant, Wyatt Hunt, and Travis Brown got together on the gallery of the restaurant. Several witnesses testify, while these four boys were together, some one said, referring to Wilshire, "We will get him, or I will get him on his road home." Appellant accepted the bills as filed by the court, and in the qualification the court says the evidence shows "that at the time such remarks were made appellant, Otis Woods, Wyatt Hunt, and Travis Brown were together in front of the restaurant, and that the remark came from the crowd so bunched up." As qualified by the court, these bills present no error. All four were together when the assault was made by Woods, and, the testimony showing that, if appellant did not make the remark himself, he was standing in such proximity as to lead a jury to believe that he could have and did hear it, it would be material testimony on the issue of whether or not appellant was a principal in the commission of the offense. [2, 3] There are also several bills in the record objecting to the admissibility of a statement made by Gulley to Wilshire while he was in the restaurant and appellant and the other young men were on the gallery. It is made to appear by the testimony that Wilshire, instead of going to his own home to avoid a difficulty, went with Gulley in Gulley's buggy. After Wilshire had stayed in the restaurant for some time, Gulley approached him and said, "Come on and let's go home," to which Wilshire responded, "All right." Appellant objected to this on the ground that he was not present when the lan the gallery of the restaurant at the time; that Wilshire could and did hear what was said by them when the remark was made, "We or I will get him on his way home," and consequently appellant and those with him were in such a position that they could, and probably did, hear what was said. The record further discloses that, when Wilshire and Guiley got in the buggy and started and had gone about two miles, appellant, Woods, Hunt, and Brown were in buggies in the forks of the road, their buggies being so placed that it was impossible for Gulley to drive on; that Woods asked him if Wilshire was in the buggy, and, upon being answered in the affirmative, said, "Tell Wilshire to get out; I am going to whip him." Appellant being placed by the evidence in a position where he could and probably did hear the arrangements made between Gulley and Wilshire for Wilshire to accompany Gulley home, and appellant also being in company with Woods on Gulley's road home at the time the buggies were so placed that Gulley could not pass, and Woods said to Gulley, "Tell Wilshire to get out; I am going to whip him," the testimony was admissible on the issue of whether or not there was a premeditated assault, and, if there was a conspiracy between appellant, Woods, and the other two young gentlemen to so place themselves in the road as to bring it about, and whether or not appellant, with a knowledge of these facts, so conducted himself at the time of the assault as to render himself a principal in the offense committed by Woods. Woods. The state's evidence would show, when Wilshire struck Woods with a plank and knocked him down, appellant jerked the plank from Wilshire and handed it to Woods. Appellant admits getting the plank from Wilshire, but says he did not hand it to Woods; that Woods jerked it out of his hand. The testimony objected to was properly admitted. Holden v. State, 18 Tex. App. 106; La Grone v. State, 61 Tex. Cr. R. 170, 135 S. W. 122. [4, 5] When the fight took place in the road, and appellant took the plank away from Wilshire, and he either handed it to Woods, or Woods wrenched it out of his hands and struck Wilshire, Wilshire ran, Woods pursuing him. Appellant objected to Wilshire testifying what Woods did to him after he ran, on the ground that appellant was not present. If appellant was a principal in the commission of the offense, the evidence would be admissible, and, as the evidence shows that appellant, Brown, and Hunt followed on after them, and the state's testimony would show that when they caught him with Woods and Wilshire they remarked "that he [Woods] ought to beat your [Wilshire's] damned head off," it would be a strong circumstance tending to show that appellant was present and lending encourage sault, and guilty of such conduct as would make him a principal in the commission of the offense. [6, 7] Wilshire testified that after he fled he got tangled in some brush, when Woods overtook him and beat him with a fence rail; that he knew it was a fence rail because one was found on the ground the next morning with blood on it. On cross-examination it appeared that Wilshire did not go back to the scene of the difficulty, and did not see the rail, but Gulley did go back and find the rail and saw the blood. Wilshire should not have been permitted to testify as to what he had learned from Gulley. It was hearsay, but, inasmuch as Gulley testified to the same state of facts, and there is no testimony denying this state of facts, this does not present reversible error. If appellant had raised an issue by any testimony that it was not a fence rail, or that one was not found on the ground with blood on it, we might take a different view of the matter. [8] Appellant's testimony would raise the issue that he was not a principal, and was an innocent bystander, who merely happened to be present when all these matters occurred; that he in no way aided or encouraged Woods, and did no acts and was guilty of no conduct that would make him a principal. This issue was fairly and fully presented in the two special charges given at appellant's request, and the jury found against such contention, and we would not be authorized to disturb their finding, as the evidence offered by the state will support the verdict of the jury on this and all other POPE v. STATE. (No. 3698.) (Court of Criminal Appeals of Texas. Oct. 27. (Court of Criminal Appeals of Texas. Oct. 27, 1915.) AFFIDAVITS 5-AUTHORITY TO TAKE-ATTORNEYS. On motion for new trial in a criminal case on the ground of newly discovered evidence, affidavits, made before the attorney of defendant, are invalid and cannot be considered. [Ed. Note. For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. 5.] Appeal from District Court, Hill County; Horton B. Porter, Judge. G. C. Pope was convicted of passing a forged instrument, and he appeals. Affirmed. Will M. Martin and Geo. W. Dupree, both of Hillsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted for passing a forged instrument, and assessed the lowest punishment. The indictment is in two counts; one for forging a check, the other for passing the alleged forged check. The court submitted both issues for a finding. The jury expressly found him guilty of passing the forged instrument, thereby acquitting him of the forgery thereof. There were some questions raised by the appellant pertaining to the charge on the first count, but as he was acquitted on that count, those questions, even if they had been on that issue material, pass out of the case, and it is wholly unnecessary to consider them. The state clearly proved that the alleged forged instrument was a forgery, and the state's witness positively identified appellant and swore that he had passed that identical instrument on him and that he paid him therefor in goods and money. The testimony as to the second count was positive, and his guilt thereunder did not depend wholly on circumstantial evidence and no charge on circumstantial evidence on that count should have been given. Appellant requested several special charges which the court correctly refused to give. None of them should have been given even if they had been presented in such a way that this court would have to consider any of them. The evidence shows that about a month after the alleged forged instrument was passed A. W. White, whose name had been forged thereto, and appellant, went to see Mr. Downing, the party on whom it was passed and talked with him about the facts. Downing swore positively that the instrument was passed on him one Saturday evening between 4 and 6 o'clock, and that it was not at night, and he as positively and unequivocally swore that he did not tell White and appellant on said occasion that it was passed on him at night. They swore he did so tell them. Downing was the state's main witness. Appellant did not express, at the time, any surprise at Downing's testimony, but he swore positively that he was not the man who passed on Downing said forged instrument at all, and that he had never been in Downing's store until about a month after the alleged offense. He did not testify where he was during the hours between 4 and 6 o'clock on the evening Downing swore he passed said forged instrument on him. Of course he knew where he was. After the trial, he made a motion setting up that he was at a different place between said hours, and attached the purported affidavits of several of his kinfolks to the same effect. Each of these affidavits were sworn to before one of |