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Decker v. Decker, 193 Ill. 285, 61 N. E. 1108, other commodities provided by the defend55 L. R. A. 697, 86 Am. St. Rep. 325, and ant. On a number of occasions the plainnote; Christianberry v. Christianberry, 3 tiff inflicted physical injuries upon the body Blackf. (Ind.) 202, 25 Am. Dec. 96; Burke of defendant, by striking her at least once v. Burke, 44 Kan. 307, 24 Pac. 466, 21 Am. with a stick and sometimes with his fist, St. Rep. 283; Day v. Day, 71 Kan. 385, 80 and upon one occasion he pulled out part Pac. 974, 6 Ann. Cas. 189, and note; Cum- of her hair. The children were the frequent ming v. Cumming, 135 Mass. 386, 46 Am. Rep. recipients of their father's wrath, and when 476; Morrison v. Morrison, 142 Mass. 361, 8 the mother protested she shared their punN. E. 59, 56 Am. Rep. 688; Von Bernuth v. ishment. This continued, according to the Von Bernuth, 76 N. J. Eq. 487, 74 Atl. 700, 139 testimony of the defendant and three of the Am. St. Rep. 784; Smith v. Smith, 4 Paige children and denied by no one, since plain(N. Y.) 432, 27 Am. Dec. 75; Mattox v. Mat-tiff did not go upon the stand-until the wife tox, 2 Ohio, 233, 15 Am, Dec. 547; Church v. moved with her children to Danville. PlainChurch, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. tiff grew very cold after that time, and up385; Mathewson v. Mathewson, 18 R. I. 456, on one occasion before the alleged affair 28 Atl. 801, 49 Am. St. Rep. 782; Hale v. with J. H. Smith, when he was at the DanHale, 47 Tex. 336, 28 Am. Rep. 294; Hub- ville home, because some young school chilbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, dren were making a noise in a neighboring 6 L. R. A. 58; Nye's Appeal, 126 Pa. 341, yard, he accused his daughters and wife of 17 Atl. 618, 12 Am. St. Rep. 873; Ellett v. running a "whorehouse," and subsequently Ellett, 157 N. C. 161, 72 S. E. 861, 39 L. R. A. wrote letters to his daughters, in which the (N. S.) 1135, Ann. Cas. 1913B, 1215; Anderson same charge was stated. It is true that the v. Anderson, 89 Neb. 570, 131 N. W. 907, Ann. letters were after the alleged affair with J. Cas. 1912C, 24. To the same effect is 14 Cyc. H. Smith, but according to the authorities, 630, 631. In the case of Decker v. Decker, supra, if they were unfounded and malicious, supra, reported in 193 Ill. 285, 61 N. E. 1108, they at least furnished evidence of cruelty 55 L. R. A. 697, 86 Am. St. Rep. 325, Mr. as much so as if made prior to that time, Freeman has an extended note upon the doc- and that such unfounded charges are comtrine of recrimination now under considera-petent on a charge of cruelty has been many tion, and on page 336 of that volume he says: times announced by this and other courts.

"It is a rule of universal application that, in Kefauver v. Kefauver, 57 S. W. 467, 22 Ky. reply to an application offen diverse may the Law Rep. 386; Bishop on Marriage, Divorce

of defendant, he allege, either by way of recrimination or cross

and Separation, vol. 1, § 1569; Cyc. vol. 14, petition, the commission of adultery by the p. 606; Rogers v. Rogers, 17 S. W. 573, 13 plaintiff'; and, if the charge is sustained as to Ky. Law Rep. 526; Barlow v. Barlow, 90 both of the parties, the suit must be dismissed, s. w. 216, 28 Ky. Law Rep. 664; and 9 R. provided, of course, there has been no condonement. If both parties have a right to a C. L. 345, 346. From this testimony, which, as divorce, neither has"

we have said, is undenied, there is no escape -and to this statement there is appended a from the conclusion that the charge in the long list of cases from many of the states. counterclaim of cruel and inhuman treatOur own court has in an indirect way rec-ment was established. ognized the doctrine in Evans V. Evans,

About the middle of 1915 Eula Sergent, supra, and Beeler v. Beeler, supra.

alias Howard, came to live in plaintiff's This principle we regard as eminently house in Harlan county, in which there also Just, for if the spouse who is seeking a re- lived a man and his wife with two or three lease from the bonds of matrimony is him- children. The Sergent or Howard woman self guilty of the same charge which he was a divorced widow, about 23 years of makes, or of another equally efficacious in age, and Noble Smith, while on a visit to his dissolving such bonds, he should not be per- father that summer testified that he saw mitted to alter his status, and to be relieved plaintiff in bed with that woman. Another of the burdens thereof, and to thereby de- witness testified that in passing plaintiff's prive the other spouse of whatever benefits house he saw through the window plaintiff that may accrue, either in a social way, or and the woman caressing each other in from or growing out of property rights, in- plaintiff's room, and as he thought plainchoate or otherwise, by a continuance of the tiff had the woman sitting on his lap. Other relation.

witnesses testified that they were seen fre[7,8] Briefly examining now the charges quently together about the neighborhood, which the defendant preferred against the sometimes riding horseback and at other plaintiff, the testimony shows that from an times walking. After the woman left plainearly date the plaintiff's treatment of the tiff's house he was seen frequently about the defendant was cruel, rough, and wholly in places to which she moved, engaged in conconsiderate. She worked like a slave, and versation with her, and within one week from the meager clothing which she and the chil- the granting of the divorce (a fact which we dren received, aside from their every-day learn from the motion to modify the judgwear, was purchased principally with money ment) she and the plaintiff were married. It earned from the sale of butter, eggs, and does not require a keen imagination to suzmise that the hiring of the nephew, J. H. , consideration other property which he posSmith, was in preparation for this event, so sessed. It is shown that he is now reaping that plaintiff might be relieved of the bur- royalties from the operation of some characden and responsibility of caring for and ter of mines upon his land, but the extent looking after the children, and at the same of this is not shown, nor is there anything time to exchange his tired and exhausted informing us as to the amount of the royalwife for a younger and more attractive ties which he is receiving. Enough, however, woman.

is shown to authorize us to fix a reasonable [9-11] The reputation of Miss Sergent, or allowance to be paid monthly to the defendant Howard, for chastity is assailed by the testi- and to each of the children during infancy, mony of a number of witnesses. None of and which according to all the cases, should these facts is denied by the plaintiff, as he did be sufficient in amounts to enable the benenot testify; but the woman denies all of ficiaries to live comfortably, their station, them, and says that the subject of marriage needs, and circumstances considered, and was never mentioned between them, although, considering also the ability of the plaintiff as we have seen, it occurred within a week to pay. We have concluded that perhaps it after the granting of the divorce. She ad- would better subserve the interests of the mits, however, that upon one occasion the family, including the defendant, that she be plaintiff attempted to hug and kiss her, but paid a monthly allowance instead of a lump that she declined to let him do so. There sum as alimony, and that $200 per month are other facts and circumstances connected for her, and $75 per month for each of the with the relationship of the plaintiff and the infant children until they become of age, is, woman in question sufficient to at least raise under the facts of the case, reasonable and a strong suspicion that defendant's charge moderate. We are further of the opinion that against him of living in adultery with her the allowance of $750 to defendant's attorneys was true. Under the doctrine of recrimina- was too small. Considerable proof was taken tion, which we have heretofore discussed, at different points and upon different dates, if for no other reason, it is manifest that the and, under the circumstances, we have concourt should not have granted the divorce cluded that a fee of $1,000, to be paid to the to the plaintiff, and if he thought that the defendant's attorneys, is extremely reasoncharges preferred against the defendant were able. true he should have at most granted only a

It is therefore ordered that the judgment divorce a mensa et thoro, for it must also concerning the allowances to the defendant be remembered that if the twig was bent and her children and to her attorneys be the plaintiff was the first one to bend it. modified, as herein indicated, and that plainIn such case it would have been the duty of the tiff, in addition to furnishing the residence at court to make proper alimony allowances to Danville, be required to maintain it in repair the wife. Burns v. Burns, supra, and cases and keep it insured for the use of the defendtherein referred to. Although we have no right to reverse the judgment of divorce, we ant and her children until they become of age, are not prevented from correcting the judg- with the privilege of the adult ones living ment with respect to alimony and the allow with her after that time, with defendant's ances made for the benefit of the infant consent, and with the privilege of herself children, as well as that made to defendant's occupying it until the further orders of the attorneys. As stated in the Burns Case, and court, and this to be effectual from the date others referred to therein, there is no fixed of the judgment below. rule as to the amount to be allowed in such

Wherefore the judgment is reversed, with cases. The proof here shows that the land directions to enter a judgment consistent only of the plaintiff is worth at least $300,

herewith. 000 or $400,000, some witnesses placing it as high as $600,000. This does not take into SAMPSON, J., dissents.

(83 Tex. Cr. R. 382)

the laws of the United States as a retail malt CLAUNCH v. STATE. (No. 4640.) liquor dealer; or any house located in any coun(Court of Criminal Appeals of Texas. May 15, which the sale of intoxicating liquors has been

ty, justice precinct or subdivision of a county in 1918.)

legally prohibited, where the owner, proprietor 1. INTOXICATING LIQUORSO 45-MALT LIQ- or lessee thereof has posted a license issued by UORS -- LICENSES – REPEAL OF STATUTE – the United States of America authorizing such DISORDERLY HOUSE."

owner, proprietor or lessee thereof to pursue Pen. Code 1911, art. 496, defining as a dis- the occupation and business of a retail liquor orderly house a place in prohibition territory dealer or a retail malt liquor dealer." where nonintoxicating malt liquors are sold, is [1-4] This amendment to the disorderly 158, 160, levying an annual occupation tax on house statute is ir Penal Code, art. 496, and such business in probibition territory, and no article 500 prescribes a penalty for its violaconviction can be had for failure to acquire the tion in the sum of a $200 fine and confinement license.

in the county jail for 20 days. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Disorder

It was held by the Court of Civil Appeals. ly House.]

in the case of Johnson v. Elliott, 168 S. W. 2. INTOXICATING LIQUORS @ww 48 _ “NONIN-968, in which the Supreme Court refused a TOXICATING MALT LIQUORS.

writ of error, that the last-named statute Nonintoxicating malt liquor, as used in Pen. repealed article 157, supra, the license statCode 1911, arts. 157, 158, 160, 496, is a fer- ute, in so far as the latter authorizes the mented malt liquor, containing alcohol in quantities insulucient to produce intoxication when issuance of a license for the sale of noninused as a beverage.

toxicating malt liquors in parts of the state 3. INTOXICATING LIQUORS Own17—NONINTOXI- where the sale of intoxicating liquors was CATING MALT LIQUORS-PROHIBITION.

prohibited. In that case Johnson, the appelThe Legislature has the power to prohibit, as a police regulation, sale of nonintoxicating lant, sought a mandamus to compel Elliott, malt liquors in territory where prohibition is the tax collector, to issue a license for the in force.

sale of nonintoxicating malt liquors at a 4. LICENSES Cm7(1)-PROHIBITED BUSINESS. place in Tarrant county where the sale of

Courts will not enforce a law, nor can the intoxicating liquors was prohibited by law. Legislature pass one, which levies añ occupation tax upon the business of selling an article He tendered the payment of the $2,000 tax, in a district of the state in which its sale is pro- and otherwise complied with the requisites hibited.

prescribed by articles 7476 and 7477, Revised Appeal from Fisher County Court; M. A. Civil Stats., supra. The mandamus was reHopson, Judge.

fused on the ground that article 196, supra, On motion for rehearing. Motion granted, made it unlawful to sell nonintoxicating malt affirmance set aside, judgment of trial court liquors in prohibition territory, and that conreversed, and cause dismissed.

sequently no license therefor could be issued. For former opinion, see 199 S. W. 483. This ruling was correct, for courts will not E. A. Watson, of Rotan, and Chas. L. Black, enforce a law, nor can the Legislature pass of Austin, for appellant' E. B. Hendricks, one, which levies an occupation tax upon the

business of selling an article in a district of Asst. Atty. Gen., for the State.

the state in which its sale is prohibited. MORROW, J. Appellant insists that, con- State v. Texas Brewing Co., 106 Tex. 121, 157 ceding the soundness of the views expressed S: W. 1166; Rathburn v. State, 88 Tex. 286, in the opinion heretofore rendered to the 31 S. W. 189.

The provisions of article 157, supra, licenseffect' that the law in question was valid, a reversal should result from the fact that by a ing and making lawful, upon payment of the subsequent act the Legislature repealed the tax, the sale of nonintoxicating malt liquors, law. The prosecution was founded upon a

in its application to prohibition territory, are violation of article 157 of the Penal Code. manifestly conflicting to a degree rendering which is on page 51 of the Acts of 1909, and them irreconcilable with article 496, supra, amended by the Special Session of the same which makes it unlawful to sell such liquors Legislature, page 397, and is in Vernon's Civil in such territory. Nonintoxicating malt liqStatutes, art. 7476, and Penal Code, arts. uor, as defined in our statute, and as used 157, 158, 160. It levies an annual occupation in each of the laws in question, is a fermented tax of $2,000 on all persons selling nonintoxi- malt liquor, containing alcohol in quantities cating malt liquors.

insufficient to produce intoxication when In August, 1910, the Thirty-First Legisla- drunk as a beverage. See authorities cited in ture, at its Third Called Session (see page

original opinion, The Legislature had the 32), passed an act amending the statute defin- power as a police regulation to prohibit the ing disorderly houses, and in this law as sale of such liquors in territory where the amended the following is found:

sale of intoxicating liquors is prohibited by “Any house located in any county, justice pre- law, this right existing to protect public cinct or other subdivision of a county where health and morals, and to aid in the enforce the sale of intoxicating liquors has been pro- ment of the prohibition laws adopted under hibited under the laws of this state, in which the local option provision of the Constitution. such non-intoxicating malt liquor is sold or kept Ex parte Dupree, 101 Tex. 150, 105 S. W. for the purpose of sale as requires a seller

. thereof to obtain internal revenue license under 493; Fitch v. State, 58 Tex. Cr. R. 367, 127

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S. W. 1040; Purity Extract & Tonic Co. v. count of the escape of appellant. Motion to Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. reinstate appeal. Overruled. 184, and other cases cited in the original The appeal was dismissed without written opinion.

opinion. The conflict between the two provisions

E. B. Pickett, Jr., of Liberty, for appellant, (articles 157 and 496, supra) is illustrated by E. B. Hendricks, Asst. Atty. Gen., for the the fact that the appellant, who was here State. prosecuted for selling nonintoxicating liquors at a certain place in Fisher county without a

On Motion to Reinstate Appeal. license, is also prosecuted under article 496 for keeping a disorderly house in the same

DAVIDSON, P. J. [1] On a former day of place; this based upon the fact that he kept the term this appeal was dismissed on acin his house for sale nonintoxicating malt count of the escape of appellant. This was liquors. In this latter case, No. 4615, on the made to appear satisfactory to the court at docket of this court (204 S. W. 436), he has the time. Motion is made to reinstate the been convicted and condemned to pay a fine appeal. The facts show, both in the motion and serve a jail penalty, and the conviction to reinstate and the original showing, that has been affirmed. His conviction in this defendant had escaped; that he broke jail case is for failure to obtain a license which near midnight, and was captured, by the under the law could not be issued to him. sheriff the next day some time, about 12 because the Legislature by the passage of miles from the jail from which he escaped. article 496, supra, as construed by the civil There is nothing to indicate in the motion courts, within whose jurisdiction is the ques that it was his purpose to return, or that he tion of the issuance of license, has determined was returning. The sheriff captured him. that in prohibition territory no license for the Under all the authorities, which are found business in question can be issued. The Leg. collated in Vernon's Crim. Stats. pp. 875, islature doubtless reached the conclusion 876, this was an escape, and not evidence of that the passage of article 496, prohibiting a voluntary return. The general proposition sales of nonintoxicating malt liquors in sub- is laid down and supported by all the audivisions of the state where the sale of in- thorities that where a defendant, pending his toxicating liquor was prohibited, was a more appeal, 'escapes from the custody of the shereffective way of accomplishing the purpose in iff, and not voluntarily returning within ten view of preventing sales of nonintoxicating days, the appeal will be dismissed, and where malt liquors in such districts than by means he has been recaptured before the lapse of of the license statute mentioned, and to have ten days his escape, nevertheless, divests the adopted the prohibition statute in lieu of court of the jurisdiction of the appeal. A the license statute and thereby annul the recapture within ten days, while preventing latter so far as such districts are affected. a voluntary return of the defendant into

For the reasons stated, the motion for re- custody, will not restore jurisdiction of the hearing is granted, the affirmance of the case appeal. Lunsford 'v. State, 10 Tex. App. is set aside, and the judgment of the lower 118; Ex parte Wood, 19 Tex. App. 46; court is reversed, and the cause dismissed. Loyd v. State, 19 Tex. App. 137. These de

cisions follow the statute, which is article

912, C. C. P. 1911. (83 Tex. Cr. R. 348)

[2] It is claimed in the motion that there

was an issue on the trial of defendant's inGILBERT v. STATE. (No. 4846.)

sanity. This was decided against him by the (Court of Criminal Appeals of Texas. May 1, jury, but this would not entitle him to have 1918. Rehearing Denied May

his appeal reinstated any more than any 29, 1918.)

other adverse question in the case. Any is1. CRIMINAL LAW Cm1131(7)-APPEAL-Es- sue in the case properly presented on the CAPE_DISMISSAL.

record would be reviewed by the court in .Where appeal was dismissed under Vernon's Ann. Code Cr. Proc. 1916, arts. 912, 913, on passing upon the transcript on its submisaccount of the escape of appellant, recapture sion, but this court is not authorized to enwithin ten days of his escape, while preventing ter into an examination of the issues prea voluntary return, did not restore jurisdic- sented in the transcript on appeal while there tion of the appeal.

is pending before it a motion to reinstate 2. CRIMINAL LAW Ow1131(7) - APPEALS MOTIONS-MATTERS REVIEWABLE.

the appeal, which had been dismissed on a On motion to reinstate appeal dismissed on previous day of the term on account of the account of escape of appellant, the only matters voluntary escape of defendant. before the court are the matters involved in would not be authorized to resolve itself into

s voluntary escape of defendant. This court the escape, and the court cannot consider an issue in the trial court as to insanity.

a trial court to review any question present

ed on the record on appeal from the conAppeal from District Court, Liberty Coun- viction. The only matter to be reviewed by ty; L. B. Hightower, Judge.

the court upon motion to dismiss the appeal Frank Gilbert was convicted of crime, and on account of escape would be the matters he appealed. Appeal was dismissed on ac- involved in the escape. The question is whether he voluntarily escaped, and not escape from prison during the pending of the what the merits were on the trial of his case appeal, then the jurisdiction of the appellate before the jury.

court shall no longer attach in the case; and The motion to reinstate the appeal will upon the fact of such escape being made therefore be overruled.

to appear, the court shall, on motion of

the Attorney General or counsel for the (83 Tex. Cr. R. 345)

state, dismiss the appeal,” thereby removing

all discretion the court formerly had. GIBSON V. STATE. (No. 4834.)

This act was held constitutional and valid. (Court of Criminal Appeals of Texas. May 15, Gresham v. State, 1 Tex. App. 458, and other


cases. Said act made no provision for a rein-DISMISSAL-STATUTES.

statement of the appeal in the event of the Under Code Cr. Proc. 1911, arts. 912, 913, voluntary return. providing that if defendant, pending appeal in In Young v. State, 3 Tex. App. 385, it was a felony case, shall escape from custody, the shown that in October, 1877, he was convictjurisdiction of the Court of Criminal Appeals shall no longer attach, and the appeal be dis- ed of a felony and appealed. On December missed, but that the order dismissing appeal 12th the Assistant Attorney General made shall be set aside if it shall be made to ap- a motion to withdraw the submission and to pear that defendant voluntarily returned to the dismiss the appeal because appellant had escustody of the officer from whom he escaped within ten days, etc., where defendant, con- caped from custody on December 8th. The victed of burglary and sentenced, escaped from motion was granted, and the appeal dismissjail while his case was pending on appeal ined on December 12th. On December 19th he

. the Court of Criminal Appeals, his purpose being to escape permanently, and he did not vol- made a motion to set aside this dismissal and untarily return or offer to do so, his appeal reinstate the case because on December 17th, must be dismissed on motion of the Attorney without having been arrested by any one, he General.

voluntarily returned and surrendered himAppeal from District Court, Hale County; self to the custody of the sheriff, and was R. C. Joiner, Judge.

then safely confined in the jail to await the C. E. Gibson was convicted of burglary, decision of his case by this court. His and he appeals. Dismissed.

affidavit to the above effect was supported by W. W. Kirk, of Plainview, for appellant. the affidavits of the sheriff and one of his E. B. Hendricks, Asst. Atty. Gen., for the deputies. There were other matters in the State.

respective affidavits, but are unnecessary to

here state. It is thus seen that he voluntaPRENDERGAST, J. Appellant was con- rily returned and surrendered within ten victed of burglary on August 31, 1917 and his days of his escape, and that after his surren

der he was held in jail. This was the first punishment assessed at two years in the penitentiary. He perfected his appeal to this case decided by this court after said act of

1876. This court therein held: court on September 22d. His appeal bond was fixed at $1,500. He was first arrested by the

"We are of opinion that it would be a dansheriff of Hale county and placed in jail on terly to abrogate the provisions of the law

gerous precedent, and one which would tend utJune 3d on a charge of swindling. His bond with regard to escapes, for this court to exeron that case was fixed at $1,000. He was cise the authority of granting the proposed_re

The unable to give it, and was held in jail by the lief under the circumstances of this case. sheriff continuously thereafter, except when his escape from prison during the pending of

law is 'that, in case the defendant shall make he effected his escapes from jail as herein the appeal, then the jurisdiction of the appelafter stated. The Assistant Attorney General late court shall no longer attach in the case; has filed a motion to dismiss this appeal be- and, upon the fact of such escape being made cause appellant broke jail and escaped after Attorney General or counsel for the state, dis

to appear, the court shall, on motion of the his appeal and did not voluntarily return, and miss the appeal.' Acts 15th Leg., p. 217. The therefore this court has no jurisdiction. Ap- dismissal of the case put an end to the jurispellant resists this motion and claims that he has been shown why (if possible after it is once

diction of this court over it, and no good cause broke jail and escaped “for the purpose of lost) we should resume it again. It may apgetting out to his uncle's for the purpose of pear to be a hardship upon appellant, but, if so, seeing about making an appeal bond (in this it is one for which no one is responsible or

blamable but himself.” case), or why the bond had not been made, with the intention of returning to said jail." The next case decided under said act was

Before stating the facts, the law applicable Brown v. State, 5 Tex. App. 127, wherein it will be given. Before 1876 the authority of was shown that Brown was convicted of a the court to dismiss and reinstate a case be- felony in July, 1878, and appealed. On Octocause of an escape pending appeal was in the ber 30th, pending appeal, the Assistant Atsound discretion of the appellate court. There torney General moved to dismiss the case was no statute on the subject. Moore v. because appellant had escaped. On that date State, 44 Tex. 595. On August 21, 1876, p. this court granted the motion and dismissed 217, the Legislature for the first time enacted the case in compliance with said act of Au"that in case the defendant shall make his gust 21, 1876. On November 18, 1878, Brown

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