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made a motion to set aside the dismissal and, court ceased to attach upon the escape of the reinstate the case, clearly showing by the appellant. And in order for it to re-attach, affidavit of two deputy sheriffs that he had the appellant must voluntarily return into cusvoluntarily returned and surrendered to the required to wait the expiration of the ten sheriff and was then in jail. The report of days before making an effort to capture the pristhe case does not state the number of days oner; the presumption being that the prisoner, elapsing between his escape and return, but having escaped, would not voluntarily return

into custody. Holding that the escape, ipso facsays that the facts are strikingly similar to to, ousted this court of the jurisdiction of the those in the Young Case. Hence we think it appeal, and that nothing save a voluntary reclear that he returned and surrendered with turn to custody could reinvest the court with in ten days from his escape. In the opinion jurisdiction, we conclude that the motion of the

Assistant Attorney General is well taken" written by Judge White the court quotes said act of 1876 and says:

-and dismissed the case. The law as thus "It follows that a party who has appealed in held has been adhered to ever since in a a felony case, and who effects his escape during great number of cases, some of them collated the pendency of his appeal, does so at his in 2 Vernon's Crim. Statutes, p. 875; some peril. He by his own act deprives this court of its jurisdiction of his case; and, when that of these and others also cited in 1 Branch's fact has been made to appear, and his case An. P. C. § 591. The law as thus enacted has been dismissed, this court has no further and held by this court has been adhered to power or control over it"

down to this very day as shown by Presiding -and overruled the motion to reinstate. Judge Davidson's opinion in Gilbert v. State,

Soon after these decisions the Legislature 203 S. W. 892, handed down on May 1, 1918. by an act of February 21, 1879, in adopting Said motion of the Assistant Attorney Genthe Codes as reported by the revisers, enacted eral to dismiss is supported by the affidavits articles 912 and 913 of the C. C. P., which of J. O. Terry, sheriff of Hale county, W. W. are as follows:

Jeffus, his deputy, and D. M. Thomas, a pri“Art. 912. When Defendant Escapes, Pending vate citizen. These affidavits show: That an Appeal.-In case the defendant, pending an the sheriff arrested appellant on June 3, 1917, appeal in a felony case, shall make his escape from custody, the jurisdiction of the Court of on a charge of swindling. That his bond Criminal Appeals shall no longer attach in the therein to await action by the grand jury case; and, upon the fact of such escape being was fixed by the examining court at $1,000. made to appear, the court shall, on motion of That appellant was unable to make that the Attorney General, or attorney representing the state, dismiss the appeal; but the order bond, and hence was placed and held in jail dismissing the appeal shall be set aside, if it by the sheriff. That on June 8th appellant shall be made to appear that the accused had voluntarily returned to the custody of the offi- the sheriff learned it he and said deputy

made his escape from jail. That as soon as cer from whom he escaped, within ten days.

"Art. 913. Sheriff shall Report Escape, etc.- and a posse of citizens began a search for When any such escape of a prisoner occurs, him to capture him. The sheriff offered a the sheriff who had him in custody shall im- reward of $25 for his capture. That upon mediately report the fact, under oath, to the district or county attorney of the county in breaking jail he left on foot. · When captured which the conviction was had, who shall forth by the sheriff of Oldham county on June 17th with forward such report to the Attorney Gen- he had worked his way north about 120 eral at the court to which the transcript was miles. When captured he was in possession sent; and such report shall be sufficient evidence of the fact of such escape to authorize the of a horse and saddle. Later he was indictdismissal of the appeal."

ed in Swisher county in two indictments Then for the first time this court was given for the theft of said horse and saddle which power to reinstate a dismissed case because of were alleged to have been stolen after his escape, solely by showing voluntary return sheriff of Hale county got appellant from

escape and before his capture. That the within ten days.

The first case decided by this court under the sheriff of Oldham county soon after his said articles was Lunsford v. State, 10 Tex. capture and brought him back, and again App. 118. Pending appeal therein appel

placed him in the Hale county jail. That lant escaped, and was recaptured the same

on August 11th the grand jury of Hale counday. The Assistant Attorney General made ty returned two indictments against appela motion to dismiss the appeal because of lant, one for the burglary of the residence of escape. In the opinion therein this court W. E. Hunt and the other for the burglary quoted article 894, C. C. P., which gives every of the residence of Basil Fruin, both offenses convicted person the right to appeal “under alleged to have been committed after his esthe rules hereinafter prescribed," and also cape on June 8th and before his said capstated that said article 912 was one of these ture by the sheriff of Oldham county. That rules, and through Judge Hurt, who wrote the on August 25th said grand jury returned an

indictment against him on opinion, held:

on said original “This is the first case arising under the Code charge of swindling. That on August 30th of Criminal Procedure, as amended or changed, appellant was tried on said charge of burcalling for a construction. We hold that, under glary of Fruin's residence, this case, and he this rule prescribing the defendant's right to was convicted and his punishment assessed appeal, the jurisdiction of the Court of Appeals, although having once attached, was lost as stated. The appeal bond was fixed at placed in the sheriff's custody and confined , appellant's said escape on October 1st he (apby him in the jail.

pellant) well knew that his uncle and brother The facts and circumstances of his escape could not make bond for him. That at the and capture, after his appeal herein, was time he was held under four separate and shown to be as follows: That on October 1st distinct cases. The bond in each of three he made his escape from jail by breaking of them was $500 and in this case $1,500 agthe lock and opening the doors with iron rods gregating $3,000. That when he was first evidently placed in the jail from the outside placed in jail on said charge of swindling by unknown persons. That he with other and his bond fixed at $1,000 his uncle and prisoners got out about 10:30 o'clock in the brother at that time tried to make that bond morning, while the jailer and sheriff's force for him, but could not. That neither of were away. That immediately upon learn them were taxpayers, and appellant knew ing of the escape the sheriff offered a reward neither of them would be accepted on any of $25 for the capture of each escaped pris- bond. That during the time he was trying

Thereupon a number of citizens join- to make said $1,000 bond his father, who ed the officers in the chase for the escaped lived without the state, came down and spent prisoners. That about 5 o'clock that eve- a number of days trying to arrange to make ning appellant and another prisoner, Tom it, but could not. That his uncle and brothDuke, who had been convicted for arson and er lived in Hale county and had often been his punishment assessed at five years, and to see appellant while he was in jail, and who on this occasion made a final getaway, appellant well knew that he could see them were found out in a cornfield about a mile at any time he wanted to. That the sheriff and a half from the city limits. When dis- or some of his deputies would have sent for covered they were hiding under some weeds them at any time he made such request. with their shoes off. They jumped up and That neither his brother nor uncle owned ran. Appellant stopped long enough to slip land and had nothing subject to execution, on his shoes without fastening them while and appellant well knew this as the matter Duke ran without his. They ran in different had been talked in his presence when they directions. The persons discovering appel- were trying to make his said $1,000 bond, and lant chased him for several hundred yards. he well knew that before his said escape they He was gaining on them and about to make had made all possible efforts to secure a his getaway, when, while looking back at bond for him, but had failed. his pursuers, he ran into another group of Upon the thorough consideration of all men, who captured and brought him back. the affidavits it is clearly shown that appelThat appellant in the presence of said affi- lant escaped on October 1st, while his case ants and other citizens of the city said that was pending on appeal in this court; that he and Duke had planned to stay in the corn. he did not voluntarily return or offer to do field hid until night and then make a final so; that his purpose in escaping was not to effort to escape. That he would have gotten see his uncle about making his appeal bond ; away that time if he had not stopped long and that he had no intention of voluntarily enough to put on his shoes when first discove returning, but that, on the contrary, his inered, and had run without them, as Tom tention was to make his getaway and not Duke did, who was not captured. That ap- return to jail. So that under the law and pellant did not voluntarily return, but was facts the state's motion to dismiss is well captured while trying to get away as stated. taken. To his resistance of the state's motion he has Appellant cites and relies only upon Leonattached affidavits of himself, his attorney, ard v. State, 53 Tex. Cr. R. 187, 109 S. W. and some others. In neither of them is the 149. That case is directly in conflict with fact of his escapes, as substantially stated the other well-considered cases by this court, by the sheriff, his deputy, and Thomas, de and is directly in conflict with the plain pronied or disputed. Nor are the facts of the visions of the statute. Even that opinion various indictments stated by the sheriff states that, "We have had some doubt as to against him denied or disputed. Nor what whether we ought to dismiss the appeal.” he stated to those parties and other citizens However that may be, that case is inappliat the time of his flight, when discovered cable to this, for therein it was shown, and hidden, and his statement of why he did not get away at the time. But he claims in his seems not to have been controverted, that apaffidavit that his breaking jail and escaping pellant escaped with no intention of going on October 1st was “for the purpose of going away, but solely and only for the purpose of out to his uncle's for the purpose of seeing getting out to make bond and with the intenabout the appeal bond, or why the bond had tion of surrendering himself to the due pronot been made, with the intention of return-cess of law. In this case, while appellant

.

, ing to said jail.” These affidavits are about made such a claim, the facts are directly other collateral matters also.

against him and show the reverse of his conThe sheriff and his deputy by another affi- tention. Therefore this court has no jurisdavit stated : That at the time and before diction of his case, and it is dismissed.

If ap

(83 Tex. Cr. R. 442)

to be the two missing hogs of Alabama GRACE V. STATE. (No. 5015.)

White. These hogs were evidently killed some

time during the evening and before the Court of Criminal Appeals of Texas. May 22, 1918.)

seven hogs returned to the Alabama White

residence. Appellant's evidence. further 1. LARCENY Om 27-RECEIVING STOLEN GOODS shows that he went at the request of De

Cat THEFT OF Hogs-ASSISTANCE IN DIS- Loach to assist him; that he had nothing to POSAL.

If defendant only assisted one who killed do with the original capture; and that the the hogs of another in taking the hogs home hogs were dead when he and De Loach went after they were dead, he was not guilty of theft to where they were and had been dead for of the hogs, or even of receiving live hogs. 2. RECEIVING STOLEN Goods Ow3–KNOWL- some time. The evidence further shows that EDGE OF THEFT.

De Loach was armed, something like 3 or 4 Defendant was guilty of receiving dead hogs o'clock in the evening, with a single-barrel that had been stolen by another only if he knew shotgun; that he went in the direction of the the hogs were stolen when he assisted the other in taking them home after they had been shot. lake, and shortly thereafter, about 4 o'clock, 3. CRIMINAL LAW m413(2) EVIDENCE

two gunshots were heard about where the STATEMENT BY DEFENDANT.

hogs were found dead. It is further shown In a prosecution for hog theft, the whole of that appellant was working Durden's team defendant's statement to an officer, who came with a search warrant to his house looking for on the Onalaska farm, plowing a pair of the hogs, explanatory of defendant's nossession, mules, and at sunset he came from the field was admissible, the state having introduced with the mules and put them up and went part of it, and part of it should not have been home. De Loach was at his house upon his excluded on the ground such part was self-serv-arrival. From there they went and got the ing. 4. LARCENY O 55-GUILT-SUFFICIENCY OF hogs. The state did not undertake to con

— EVIDENCE.

nect appellant with the original taking otherIn such prosecution, circumstantial evidence i wise than by his joint possession of the hogs held insufficient to connect defendant with the after they were dead several hours.

or show that he committed the theft.

[1-3] The court did not charge upon cirAppeal from District Court, Polk County; cumstantial evidence, nor did he instruct the

jury with reference to appellant receiving J. Llewellyn, Judge. Tom Grace was convicted of hog theft, dead hogs; in fact did not charge upon the

issue of receiving stolen property. and he appeals. Reversed and remanded.

pellant was only assisting De Loach in takMcKinnon & Campbell, of Livingston, for ing the hogs home after they were dead, he appellant. E. B. Hendricks, Asst. Atty. Gen., could not be guilty of theft of the hogs, or for the State.

even of receiving live hogs. He would only

be guilty of receiving dead hogs, if he knew DAVIDSON, P. J. Appellant was convict- the hogs were stolen. When the officer went ed of hog theft; his punishment being assess with a search warrant to appellant's house ed at three years' confinement in the peni- looking for the hogs he made a statement to tentiary.

the officer, some of which was excluded on This is a case purely of circumstantial evi- the ground that it would be self-serving dence. The state's case is that appellant and statements. This testimony, if it is offered De Loach were found in possession of two upon another trial, should be admitted in refdead hogs at night, alleged to be the property erence to statements made to the officer of Alabama White. Alabama White testified about these hogs. The state having introducthat she had nine "killing" hogs; that these ed part of it, he was entitled to the whole hogs came up every evening and she fed and conversation with reference to it explanaslopped them, as she also did in the morn- tory of his possession. ing; and that they ranged around a lake near [4] We are of opinion that the testimony where she lived during the day. On this is not sufficient to connect appellant .with the particular evening only seven of the hogs taking of the hogs. The state offered no returned; two of them did not. These are testimony controverting his alibi at the time the hogs supposed to have been found in pos- of the capture of the hogs, or to disprove the session of appellant and De Loach that fact that he was working on the Onalaska night. The evidence further shows that the farm at the time of the killing of the hogs hogs were shot. The defendant's case. is by De Loach. There was no evidence of any that he had nothing to do with the killing conspiracy between them otherwise than has of the hogs, and was not present; that after been stated. We are of opinion that as the they were killed De Loach came to him and record presents the case the evidence is not asked him to go with him; that he did so, sufficient to connect him with the original and when they reached the lake he ascertain taking, or show that he committed the theft. ed the fact that De Loach wanted him to The judgment, therefore, will be reversed, help carry the two hogs home. These proved and the cause remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(83 Tex. Cr. R. 234)

Appellant owed Garrett an account. GarFAUBIAN v. STATE. (No. 4924.) rett had met him some two weeks before the (Court of Criminal Appeals of Texas. April 10, dificulty, and demanded payment. On the oc1918. On Motion for Rehearing, casion of the difficulty appellant had started May 29, 1918.)

to his place of business with a hammer in his 1. HOMICIDE Cum 120-ASSAULT TO MURDER- hand, and was invited by one of the witnessSELF-DEFENSE.

The witness In a prosecution for assault to murder, es to ride to town in his car. where prosecuting witness was doing no act told appellant he was going to get gasoline at which, viewed from defendant's standpoint, Garrett's .garage, stopped his car for that manifested any intention of doing him harm, the issue of self-defense was not raised, though purpose, and asked appellant to get out so prosecuting witness had previously struck de- | the tank which was under the seat might be fendant with his fist, after which he retreated. filled. One of Garrett's employés was attend. 2. HOMICIDE Cm120 – SELF-DEFENSE - PUR-ing to the gasoline, and Garrett, who was in SUIT-GUILT OF ASSAULT.

Where prosecuting witness struck defendant the rear of the building, came out and began on the head with his fist, but when defendant a conversation with appellant about the acdrew his pistol retreated, and was fired at by count, demanding payment in quite perempdefendant after he had got some distance up the tory language, and, as state's witnesses destreet, and after he had gotten into an automobile and started away, defendant was guilty of scribed it, in a very earnest manner. Appelan assault.

lant said that he had no money to pay the 3. IIOMICIDE Om 166(3)-EVIDENCE-MOTIVE. account, and, further, that the account was

a sulting in conviction of aggravated assault , if not right, and demanded of Garrett that he

Garrett the state had been able to prove that defendant take his hands out of his pockets. had been named as corespondent in a divorce struck appellant a blow on the head with his petition which the assaulted person had filed fist and cut a gash about half an inch long against his wife, the fact would not have been and about one-eighth inch deep, which bled admissible in the absence of circumstances bringing it to defendant's knowledge.

and which appellant says dazed him. About 4. CRIMINAL LAW Cm 706, 117012(5) --CON- the time the blow was struck appellant drew DUCT OF PROSECUTING ATTORNEY-EXAMINA- his pistol, state's witnesses claiming he was TION OF ACCUSED-QUESTION TENDING TO drawing at the time he was struck. He made PREJUDICE.

Where there was no evidence that defendant an effort to shoot Garrett, who dodged had maintained improper relations with the as- around the car, and appellant was warned saulted person's wife, and there was no evidence by a witness not to shoot Garrett, as he was that defendant was named in the assaulted person's divorce proceedings against her, the state's unarmed. Garrett finally ran and was fired question to defendant as to whether he had at by appellant twice, once after he had got been named in the divorce petition as corespond- some distance up the street and again after ent or the cause of separation by reason of his he had gotten into an automobile and startassociation with the assaulted person's wife was improper and prejudicial.

ed away. 5. HOMICIDE O 340(2) - APPEAL - PREJUDI- The court charged the jury on assault to CIAL ERROR.

murder, aggravated assault, self-defense, The state's improper question to defendant as to his being named as corespondent in the adequate cause, and provoking the difficulty. assaulted person's divorce petition against his We do not think the issue of provoking the wife, and the instruction on self-defense, in the difficulty was raised by the evidence. There absence of evidence that defendant provoked the are several assignments criticizing the charge difficulty, were prejudicial error calling for new trial.

of the court and the special charge given at On Motion for Rehearing.

the request of the state.

At the time the shots were fired Garrett 6. CRIMINAL LAW 730(3)-IMPROPER CONDUCT OF ATTORNEY-DUTY OF COURT.

was not only retreating, but was doing so In a prosecution for assault to murder, re- hurriedly, and had reached a point some dissulting in conviction of aggravated assault, if tarce from appellant at the time the first the state was within its rights in asking defendant as a witness whether he had been named as shot was fired, and had increased the discorespondent in the assaulted person's divorce tance and was fleeing from him in an autopetition, the trial court should have corrected the mobile at the time the second shot was fired. injurious effect of such question by withdrawing

[1] It is evident from all the testimony, it from the jury on request.

including that of appellant, that at the time Appeal from District Court, McLennan the shots were fired deceased was doing no County; J. W. Taylor, Jr., Special Judge.

act which, viewed from appellant's standClyde Faubian was convicted of aggravat-point, manifested any intention of doing him ed assault, and he appeals. Reversed.

harm, and in our opinion the issue of selfJňo. B. McNamara, Co. Atty., and D. C. defense was not raised. Lynch v. State, 24 Woods, Asst. Co. Atty., both of Waco, and E. Tex. App. 350, 6 S. W. 190, 5 Am. St. Rep. B. Hendricks, Asst. Atty. Gen., for the State. 888; Hinton v. State, 24 Tex. App. 450;

Bush v. State, 40 Tex. Cr. R. 543, 51 S. W. MORROW, J. Appellant was indicted for 238; Branch's Cr. Law, $ 462. assault with intent to murder on one Gar- [2] It was apparent that appellant was rett, convicted of aggravated assault, and his guilty of an assault, the grade and amount of punishment fixed at a fine of $400.

punishment to be determined by the jury.

.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

203 S.W.-57

[3, 4] While appellant was testifying as a sustained. There is evidence that Garrett witness counsel for the state was permitted, assaulted appellant, and evidence that his over objection, to ask him if he had not been conduct was such as to justify the conclunamed in a divorce petition, which the prose- sion, from appellant's standpoint, that Garcuting witness, Garrett, had filed against rett was about to assault appellant at the his wife, as the corespondent or cause of said time he drew his pistol. The shots were separation, by reason of his familiarities and not fired by appellant then, and were not associations with the prosecutor's wife. The fired until after Garrett had manifestly appellant answered this question in the neg. abandoned any effort to continue the asative. It appears from the prosecuting wit- sault upon appellant, or to get into a posiness' testimony that he had nothing against tion to renew it. As presented by the recappellant; that he did not like him, and it ord, that the shots were fired after Garseems clear that at the time the difficulty rett had abandoned any assault that he had began appellant's presence at the place made we think is manifest. Bordeaux v. was incidental to his riding to town with the State, 58 Tex. Cr. R. 61, 124 S. W. 640. witness Mayfield; that the meeting was The charge authorizing the jury to pass brought about by Garrett; and that his con- upon the issue of provoking the difficulty is duct was aggressive and his language in- without support in the facts. sulting. There was no evidence that appel- [6] The suggestion that it was permissible iant had maintained improper relations to- for state's counsel to ask appellant if he ward the wife of Garrett, nor was there any had not been named by Garrett, the prosevidence that in the divorce proceedings ap- ecuting witness, in a divorce petition as pellant was named. It tended to put appel- the cause of the separation between Garrett lant in a bad light before the jury and if the and his wife on the issue of motive we state had been able to prove the fact it would think is not sustained under the facts of not, under the circumstances, have been ad- the case. Whether appellant had been so missible, in the absence of some circum- named was a fact of which the state's stances bringing it to appellant's knowledge. counsel manifestly had knowledge before Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. he asked the question. When he asked ap1122; Daniels v. State, 71 Tex. Cr. R. 661, pellant if he had not been so named appel160 S. W. 707. The action of the prosecuting lant replied in the negative. This reply was attorney in asking the question was prejudi- accepted without controversy. It, therefore, cial to the appellant, and the court was in appears from the record here that appellant error in permitting it, and not instructing had not been so named. The right of counthe jury to disregard it. Vick v. State, 71 sel to make inquiries to ascertain the truth Tex. Cr. R. 50, 159 S. W. 50; Hodges v. is unquestioned, but his right to ask quesState, 73 Tex. Cr. R. 378, 166 S. W. 512; Ver- tions suggesting the existence of facts which non's C. C. P. p. 395, and cases cited.

tend to reflect upon the accused, when in [5] While the issue of self-defense was not truth the facts do not exist, rests upon a in the case, the fact that the court, in the quite different basis. Bullington v. State, absence of evidence that appellant provoked 78 Tex. Cr. R. 187, 180 S. W. 679. Granting, the difficulty, instructed the jury on that however, that counsel for the state was well subject was calculated to indicate to the within his rights in asking the question jury that in the mind of the court there was mentioned, it is clear that the trial court evidence that appellant was in the wrong should have corrected, as far as possible, its from the beginning. This, together with the injurious effect by withdrawing it from the improper question mentioned above, was jury on request. Instances of reversals beprejudicial to the appellant, and may have cause there was put before the jury suggesbeen an element in enhancing the punishment tions as to the existence of damaging facts assessed. Because of them we believe the by questions are to be found in the cases of court should have granted a new trial, and Baines v. State, 43 Tex. Cr. R. 490, 66 S. his failure to do so will require a reversal | W. 847, and Wyatt v. State, 58 Tex. Cr. R. of the judgment of the lower court, which 115, 124 S. W. 929, 137 Am. St. Rep. 926. is ordered.

Other cases on the subject will be found col

lated in 2 Vernon's Crim. Stats. p. 906, note PRENDERGAST, J., absent.

43.

The motion for rehearing is overruled. On Motion for Rehearing. MORROW, J. Responding to the very

(83 Tex. Cr. R. 451) earnest and carefully prepared motion for BROWN V. STATE. (No. 5044.) rehearing filed by state's counsel, we have reexamined the questions passed upon, but are (Court of Criminal Appeals of Texas. May 22,

1918.) unable to reach the conclusion that a proper disposition of the case was not made. The 1. CRIMINAL LAW Ow1141(2)—APPEAL-PRE

SUMPTIONS. suggestion by state's counsel that the facts

The legal presumption is in favor of the present an issue of self-defense cannot be trial court's ruling as to admissibility of evi

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