statute which had not been construed, the rule will be given the same construction as the stat ute. the assignments contained in the motion for new trial in assignments of error specifying the same grounds increases the expenses of litigation and adds to the labor of the appellate appellant to rely upon the errors assigned in his motion for new trial without filing an assignment of error, creates an emergency requiring that the constitutional rule requiring bills to be read upon three several days," etc. - Certified Questions from Court of Civil Ap-courts and that there is no law permitting the peals of Third Supreme Judicial District. Suit between the Hess & Skinner Engineering Company and M. M. Turney and others. From the judgment rendered, the former appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered. A. B. Wilson, of Houston, for Lion Bonding & Surety Co. Page & Jones, of Bastrop, Duncan & Burleson, of La Grange, Maynard & Maynard, of Bastrop, S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellees. PHILLIPS, C. J. Summarized briefly, the question here certified by the Court of Civil Appeals is this: Prior to the passage of the act the assignments of error-a prerequisite of the appeal -were in general, where a motion for a new trial was filed, but a repetition of the motion. The requirement that formal assignments of error be filed in addition to the motion for a new trial thus entailed in most in- . stances double labor for the same purpose at the hands of the appellant's counsel, besides unnecessary expense in the preparation of the record. The act was passed to relieve against that condition. Its object was to allow an appellant so desiring to make use of the specifications in his motion for a new trial as his assignments of. error. Its intention was to lessen both the labor and expense of the appeal. Its design was for the appellant's benefit and in his interest. This is re [1] Where there is a trial before the court without a jury resulting adversely to an appellant who filed a formal motion for a new trial insufficient as an assignment of error because of its generality, is he entitled upon his appeal to have considered formal as-vealed by the clause in the body of the act signments of error thereafter filed and duly incorporated in the record, and in form sufficient to challenge the trial court's conclusions of law and fact, an exception having been duly reserved to the judgment overruling the motion for a new trial, but none hav-in the expense of litigation and addition to ing been taken to the conclusions of law and fact? [2] The judgment of the court having been excepted to, it was not necessary that exception be also taken to the conclusions of law and fact to secure their review on appeal under due assignments of error. Voight V. Mackle, 71 Tex. 78, 8 S. W. 623; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839. We hold it is the appellant's right to have his assignments of error considered. question turns upon the proper construction of Article 1612 of the Revised Statutes as amended by the act of the Thirty-Third Legislature. Chapter 136, Acts of 1913 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612). The amended article reads: "The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk's office; provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments, and provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of." The emergency clause of the act throws distinct light upon its purpose, and we therefore also set it out, as follows: "The near approach of the end of the ses providing that the assignments in the motion "need not be repeated by the filing of assignments of error," and that in the emergency clause declaring as the reasons for the act being put into immediate effect, the increase the labors of the appellate courts caused by the former practice, and the absence of any law "permitting the appellant to rely upon the errors assigned in his motion for a new trial without filing assignments of error." With this true, it is a technical construction of the act to say that its intent was not "to permit" the appellant to rely upon his motion for a new trial as embodying his assignments of error, but to require that he do so in every instance where such a motion is filed. If the act was intended to express a mandatory requirement, why was the provision that the assignments in the motion shall constitute the assignments of error, followed immediately by a declaration that they "need not be repeated" by the filing of assignments of error? This is language alien to a mandatory statutory provision. It signifies as clearly as words may that that which is declared as simply unnecessary is not forbidden, but is permissible. In a statute dealing with a method to be pursued for a particular purpose, it can only mean, not that an exclusive mode is provided, but an alternative one. [3, 4] That the word "shall," ordinarily a peremptory term, is employed in the clause providing that the assignments in the motion, where filed, "shall constitute the assignments of error," is not conclusive as disclosing the intent of the act. The intent of a law is the essence of the law, and it is to be gained (83 Tex. Cr. R. 368) PACE V. STATE. (No. 5019.) (Court of Criminal Appeals of Texas. May 8, 1918.) SUMPTIONS. 1090(16)- APPEAL taining evidence introduced on accused's motion In the absence of a bill of exceptions confor new trial, there is nothing to show an abuse of discretion in overruling such motion. and "shall" are not infrequently used interchangeably in legislative acts. They are to be given that meaning which will best express the legislative intent. In instances of the employment of the term "shall" where 1. CRIMINAL LAW 1144(13)-APPEAL-PREno right or benefit depends upon its imperative use, it may be held as merely directory In the absence from the record of a stateand as having been used in the sense of ment of facts, the court must presume on appeal that there was sufficient evidence to sup"may." Sutherland on Statutory Construc-port the verdict of conviction. tion, § 640. This established rule has direct 2. CRIMINAL LAW application here. The benefit intended by RECORD-SUFFICIENCY. this act was for the appellant-to provide a mode for the presentation of his assignments of error. It cannot be said that this benefit will accrue to him under the act only by giving the word "shall" a mandatory construction. Construing it in a permissive instead of an imperative sense, will still leave the appellant fully invested with the privilege of presenting his assignments by an adequate method, recognized by the act itself, and having them considered by the appellate courts. His rights will be as effectually conserved by the former construction as by the latter. They do not depend, therefore, upon an imperative use of the term. This construction enables the act to accomplish its full purpose and truly expresses what we think the Legislature intended. We decline to attribute to it a purpose to fasten further technical requirements upon the mode of appeal. It would be highly technical to confine an appellant for his assignments of error to the exact language of his motion for a new trial. This, in our view, is not what the Legislature had in mind. It intended, we think, to permit him to use his motion for that purpose if he desired, but not to deny him the right of filing formal assignments if he preferred to adopt that course. Appeal from District Court, Lamar County; Ben H. Denton, Judge. J. C. Pace was convicted of larceny, and he appeals. Affirmed. W. E. Cullum, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The judgment condemns appellant to confinement in the state penitentiary for two years for the offense of theft. [1] He entered a plea of guilty and sought a suspension of his sentence. We find no statement of facts with the record, and are consequently not advised as to what evidence was introduced, and must presume that there was sufficient to support the verdict. ing either of the court's charge or the rulThere are no bills of exception, complainings of the court in the conduct of the trial. [2] In his motion for new trial appellant claims that the state's attorney failed to keep an alleged agreement with counsel for the appellant to refrain from contesting his application for suspended sentence, and the motion for new trial is controverted on this point by the affidavit of the state's attorney. There is no bill of exception bringing before the court any evidence that may have been [5] In cases where a motion for a new trial is required to be filed, errors complain-introduced on the motion for new trial, in ed of in the assignments of error which are required to be set forth in the motion for a new trial and are not there set forth, will be considered as waived under Rule 24 (142 S. W. xii). Our construction of the act does not interfere with the accomplishment of the useful object of the motion for a new trial intended by that rule. In this case, the trial having been before the court without a jury, the appellant was entitled to appeal without filing a motion for a new trial (Craver v. Greer, 107 Tex. 356, 179 S. W. 862), and it was hence unnecessary that his assignments of error be related, to his motion. [6] Rule 101a (159 S. W. xi) adopted by the court June 25, 1913, after the passage of the act here reviewed, is in substantially the language of the act. The construction of the act had not then been determined by the court, and in preparing the rule its language was followed. The same construction is to be given the rule as we here give to the act. the absence of which there is nothing to (83 Tex. Cr. R. 446) JENKINS v. STATE. (No. 4999.) (Court of Criminal Appeals of Texas. April 24, 1918. Rehearing Denied May 22, 1918.) RAPE 53(5)— ASSAULT — SUFFICIENCY OF EVIDENCE. Evidence held to sustain conviction of assault to rape a girl under 15 years of age. Appeal from District Court, Limestone County; A. M. Blackmon, Judge. Henry Jenkins was convicted of assault to rape, and appeals. Affirmed. W. M. Kennedy and A. H. Voorhies, both of Groesbeck, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes DAVIDSON, P. J. Appellant was convict- I was the party who assaulted the girl; and, ed of assault to rape, his punishment being second, that his purpose was to have interassessed at two years' confinement in the course with her; and, third, that she was a penitentiary. girl only 14 years of age. The judgment will be affirmed. (83 Tex. Cr. R. 363) SEELY V. STATE. (No. 5018.) The only contention made is that the evidence is not sufficient to support the judgment. The indictment charged that the assault was made upon Frankie Campbell, a girl under the age of 15 years. Without going into the details as to how defendant met with the prosecutrix and her little sister on the night of the assault, and how (Court of Criminal Appeals of Texas. May 8, they were placed under his protection to be escorted to the residence of Mrs. Lemmons, etc., it is only our intention to state the immediate facts of the transaction. Prosecutrix testified: "After we got past the schoolhouse I said I thought she lived closer than this. Then my sister said she didn't know where she lived. Then the man took us on down in a branch and started across a field; he showed us a light and said that is where she lives. He took hold of my arm and I jerked loose; then he got me around the neck and threw me down. I told my sister to go get help, and she went up to Mrs. Brooks. The man told me if I didn' hush hollowing he would cut my throat with a razor. When the man grabbed my arm he did not say anything right then, but just before that he said, 'Give me some.' He threw me down, but I got up. No; he did not tear any of my clothes, but they came undone. While all of this was going on my sister ran up to Mrs. Brooks." She then details how on the next morning defendant was arrested, and that she went to the justice of the peace's office as a witness and identified the defendant. She testified further: "This man told me if I didn't hush hollowing that he would cut my throat with his razor, and he said that was nothing; that he had done that way to lots of women. I had on a hat that night, and it came off. It was laying on the ground, and Mrs. Brooks picked it up. The next morning they found my bow ribbon down where the man had me. Yes, sir; this man that left the house with us that night is the same man that assaulted me.' 99 1918.) HUSBAND AND WIFE 312-ABANDONMENT Indictment under Pen, Code 1911, art. 1450, for abandonment after seduction and marriage, an essential element of the offense being marriage after prosecution for seduction has begun in a court of competent jurisdiction, must allege the particular court where the complaint for seduction was filed, alleging the prosecution for seduction was begun in a court of compe tent jurisdiction is not enough. Appeal from District Court, Wise County; F. O. McKinsey, Judge. Frank Seely was convicted of abandonment after seduction and marriage, and appeals. Reversed, with directions. L. D. Ratliff, of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The conviction is for abandonment after seduction and marriage, as defined in article 1450, P. C. The mar A motion to quash the indictment was filed and overruled. It assailed the indictment upon the ground that it failed to designate the court in which, prior to the marriage, the prosecution was begun. The essential elements of the offense are a seduction, a marriage, and an abandonment. riage must take place after prosecution has begun in a court of competent jurisdiction. This court, in the case of Kirkendall v. State, 78 Tex. Cr. R. 168, 180 S. W. 676, passing upon the requisites of an indictment under this statute, held it "necessary to allege the particular court wherein the complaint charging seduction was filed." The indictment charges that the prosecution was begun in a court of "competent jurisdiction." The indictment should name the court, so that the judge trying the case may be able to determine from the facts alleged whether or not the prosecution was begun in a court of competent jurisdiction. The conclusion reached in the Kirkendall Case, supra, controls this one, and is in accord with the law testing the sufficiency of indictments on motion to quash. Ferguson v. State, 189 S. W. 272; Rudy v. State, 195 S. W. 187, and cases cited. There are other facts and circumstances of more or less weight contradictory of defendant's theory of the case. Appellant denied practically everything that all the witnesses stated with reference to the matter and his whereabouts that night, except as to what his mother and sister testified, and this was an alibi. However, they did admit that the boy started with the girls from their home to find the residence of Mrs. Lemmons. This assault occurred in a few moments. Appellant's contention was that he left the girls before the assault was made. There is some evidence about bruises, scratches, marks, or stripes, or something of that sort, about the neck, and the nervous excited condition of the girl and incidents of that character unnecessary here to enumerate. The girl made outery, and was heard by some of the ladies whom the smaller sister went Other questions raised will not be reviewafter. We are of the opinion the jury was ed, as they are not likely to arise in the justified in finding: First, that appellant event of another trial. Because of the error of the trial court refusing to quash the indictment, the judgment is reversed, and the prosecution ordered dismissed. (83 Tex. Cr. R. 356) BOGUS v. STATE. (No. 5012.) Fannie Johnson's house in Marshall on the night of December 18th, and that he saw appellant there that night with a pistol; that appellant accidentally fired the pistol and shot John Williams in the leg; that there was no trouble between them; that he did not see the pistol until it was fired. Ap (Court of Criminal Appeals of Texas. May 8, pellant testified that about a month before 1918.) this Fannie Johnson, his cousin, borrowed Appeal from Harrison County Court; W. and about the house for 15 or 20 minutes H. Strength, Judge. Manse Bogus was convicted of carrying a pistol, and appeals. Reversed and remanded. W. T. Caven, of Marshall, for appellant. W. T. Caven, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. This is an appeal from a conviction for unlawfully carrying a pistol, with a fine of $100 assessed. [1] It appears that at the time the complaint and information were filed that the complaint was not signed by the complainant. The jurat of the county attorney before whom the affidavit was made states that it was sworn to by the complainant. When the case was called both sides announced ready. The assistant county attorney discovered that the complaint had not been signed, and called the court's attention thereto. Thereupon both sides withdrew their announcement. The appellant then after he had shot said boy, and did not know that he had shot him, and did not learn of it until perhaps the next day. He claimed that he was standing at the door at the time he was revolving the cylinder of the pistol when it went off accidentally. Montgomery disputed him on these points. He swore he was in about the middle of the room and not at the door when the pistol was fired; that he did not see Fannie Johnson get the pistol and hand it to him as appellant claimed she had; that she was sitting at the machine for 20 or 25 minutes before the pistol was fired, and that he did not see her leave the machine, nor go to the wardrobe and get the pistol. [2] The writer thinks the testimony would justify the inference by the jury that appellant brought that pistol to town with him that day, and that Fannie Johnson did not hand it to him as he testified, and is inclined to believe that the evidence was sufficient to sustain the conviction, in view of the verdict of the jury and the charge of the court. that the state by the evidence did not show However, my associates are of the opinion his guilt beyond a reasonable doubt. though Fannie Johnson was present, summoned by the state, she was not introduced as a witness. Al made a motion to quash it because not signed. The assistant county attorney made a motion for leave to amend by having the motion for leave to amend by having the complainant then sign it. The court heard evidence on the matter, and granted the assistant county attorney's motion, and overruled that of appellant. The bill presenting this question contains the evidence heard by the court at the time, but it was not filed remanded on the ground of the insufficiency The judgment is reversed, and the cause during the term time, but some two weeks later, hence under the authorities this evi- of the testimony to establish appellant's guilt dence cannot be considered, and we must beyond a reasonable doubt. conclusively presume that it justified the court's action. Reyes v. State, 196 S. W. 533, and cases there cited. However, if we could consider this evidence, it was sufficient, we think, to justify the court's action. The court followed the statute and decision in Adams v. State, 192 S. W. 1067. The testimony shows that appellant lived several miles in the country from Marshall. The state's witness Montgomery swore that he, appellant, and John Williams were at (83 Tex. Cr. R. 354) BUTLER v. STATE. (No. 5013.) (Court of Criminal Appeals of Texas. May 8, 1. LARCENY 1918.) 55-EVIDENCE-SUFFICIENCY. Evidence held insufficient to sustain conviction of larceny of lard and sugar. 2. LARCENY 40(2) - EVIDENCE-CONFORM ITY WITH INDICTMENT. Where indictment for larceny alleged ownership in railroad station agent, no conviction For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes could be had without proof either that he owned it or had possession and control as agent of the railroad. Appeal from Hill County Court; R. T. Burns, Judge. John Butler was convicted of theft, and he appeals. Reversed and remanded. J. Webb Stollenwerck, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. The indictment charges appellant with having committed theft of sugar of the value of $9 and lard of the value of $6, being the property of W. N. Baker and taken from his possession without his con sent. Mr. Baker testified he was agent of the Missouri, Kansas & Texas Railway Company at Hillsboro; that about the 1st of November he missed, at the Katy freight office in Hillsboro, six one-gallon cans of Crisco lard of the value of $9, and one sack of sugar of the value of $9, and that he never gave his consent to any one to take this property. He says he did not know who got the lard, or whether the three cans of lard exhibited to him was that which he missed. It was the same brand of lard, although, he says, there are a great many cans of that brand of lard. It is a standard brand of lard, and handled and shipped by nearly all grocery merchants. He knew of nothing peculiar about the particular cans of lard to identify them, nor did he know who got the sugar. Thompson testified that he was constable, and went to appellant's house and found in a corner behind a safe three cans of lard, the same as that exhibited-three one-gallon cans of Crisco lard-and also found some sugar with the lard. He says he never saw defendant with any lard; never saw him enter the Katy freight office, although he worked for the Hillsboro Transfer Company. He says he did not know whether the lard on exhibition was that taken from the Katy freight office or not; that defendant was not a merchant, and that it is unusual for people who run transfer wagons to sell lard; and that he recovered two cans of lard from Lem Maddox. Maddox says he got two cans of lard from appellant, for which he paid $3, and that the officer came and took the lard. Some time after this appellant was paid off by the transfer company, and witness told appellant that he (witness) was a hard-working man and needed his money, and that the officer had taken his lard from him, and he further states, after the company paid appellant what was due for back pay, appellant paid him $3. This is the case. it was a similar brand and size. There was no attempt to introduce any evidence as to the missing sugar, unless it be the statement of the constable that he saw some sugar at appellant's house; but the kind, character, weight, or quantity is not described or set forth. A similar question under equally as strong a statement of facts as this was decided adversely to the state in the recent case of Kellum v. State, 200 S. W. 843. Judge Morrow cited the authorities and went into the question of identity and necessary proof pretty fully. For authorities, see the Kellum Case. He [2] There is another question to which we call attention. The indictment alleges ownThe evidence fails to show ownership. ership of the property to be in Mr. Baker. does not testify to this property, or that it was taken from him. He does not testify as agent of the Missouri, Kansas & Texas Railway Company that he had possession and control of the property taken. should be shown. If as agent of the railroad company this property was in his possession at least there should be some evidence of the as special owner, that fact should be shown; fact of his ownership in some way to meet the allegations in the indictment. This Exercise by defendant of his right to interrogate the jurors during selection with reference to their fairness, if taken, should not be used as an argument against him before the jury as an inducement to bring about a conviction. 3. CRIMINAL LAW 721(6)—ARGUMENT OF PROSECUTING ATTORNEY FAILURE TO TESTIFY. DEFENDANT'S It is not a reference to defendant's failure to testify, for the prosecuting attorney, in argument, to say, if defendant had bought or some one had given him a can of tobacco, he could have had them testify, but he has not brought any witness to prove where he got the tobacco. Appeal from Tarrant County Court; Jesse M. Brown, Judge. Chester Garrett was convicted of theft, and appeals. Reversed and remanded. Lopp, Roberson & Koenig, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. [1] We are of opinion that this evidence is not sufficient to form the basis of the conviction. This may or may not have been the lard taken from the Katy freight office. DAVIDSON, P. J. Appellant was convictIt was not identified, and was not undertak- ed of theft, his punishment being assessed en to be identified, except by the fact that at 30 days' imprisonment in the county jail. |