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parents were consenting to said marriage. , 3361a et seq., Sayles' Civ. St., regulates the The court, in explaining this bill of excep- removal of the disabilities of minors, and autions, shows that no proof was offered by thorizes the district courts, on petition setting appellant tending to show that he had given up sufficient grounds, to remove the disabiliMiss Porter any presents during the month ties of minors over the age of 19 years; and previous to making the affidavit, and that he provides that after such adjudication the mionly offered to prove generally that, pending nor shall be deemed of full age for all legal their engagement, he had given her presents. purposes, except that he shall not have the It does not occur to us that this testimony right to vote. We have examined the deciwas material, or that the court erred in ex- sions of our own courts, but we can find but cluding the same.
one bearing upon the subject now under conThe principal ground of contention on the sideration. Stensoff v. State, 80 Tex. 429, part of appellant why this case should be re- 15 S. W. 1100. Looking into the decisions versed is because the deputy clerk, O. L. of the courts of other states as to this and Bishop, before whom said affidavit was kindred subjects, we find the rule stated to made, was not at the time 21 years of age; be this: If the office is ministerial, such as that he was at said date only 20 years old. calls for the exercise of skill and diligence The grounds urged by appellant are: First, only, minors may legally hold the same, and because it appeared that 0. L. Bishop, the execute the duties thereof; but if the office party who administered said oath as deputy is a judicial one, or one which concerns the county clerk, was at said time a minor, under administration of justice, on account of their 21 years of age, and could not act as deputy inexperience and want of judgment and learncounty clerk, and that the affidavit was there ing they cannot be appointed to same. In fore void; second, because, said affidavit not | Golding's Case, 57 N. H. 146, which is relied being one required to be taken by the county on by counsel for appellant, the rule is stated clerk in the discharge of his official duty, the as above. In that case, however, it was held deputy could not take the same for the coun- that a minor could not hold the office of justy clerk. Our statute defining perjury and tice of the peace, the same being a judicial false swearing requires that the oath shall office. In the case of U. S. v. Bixby, 9 Fed. be taken before an officer authorized to ad- 78, the indictment charged that the defendminister oaths, and if a minor, under the ant committed perjury in swearing to the laws of this state, can be appointed a deputy truth of a quarterly report as assignee in county clerk, then it follows that he is such bankruptcy, before Auretus W. Hatch, a noan officer as can administer an oath. Our tary public. The defendant set up that the statutes with reference to county clerks and said Hatch was a minor under 21 years of the appointment of deputies, so far as they age, and could not hold the office of notary bear upon this question, are as follows: Ar- public, and so the oath taken before him was ticle 1142, Sayles' Civ. St., provides that there not before an officer authorized to administer shall be a county clerk for each county, who oaths. The court held in that case that there shall be elected at a general election for mem- was nothing in the statutes of Indiana inhibbers of the legislature by the qualified voters iting minors from holding the office of notary of such county, who shall hold his office for public; that, the notarial office being ministwo years, and until his successor shall have terial, and not judicial, the rule at common duly qualified. Article 1144, Id., indicates the law would govern.
law would govern. The court further says: form of bond and oath required. Article 1145, “Unlike most of the states, Indiana has not Id., authorizes the clerk of the county court declared, in her constitution or statutes, that to appoint one or more deputies, by written only those who have attained the age of appointment under his hand and seal of twenty-one years shall be eligible to any pubcourt, which appointment shall be recorded lic or civil office. While at common law perin the office of such clerk of the county court, sons are not admitted to the full enjoynent and shall be deposited in the office of the of political and civil rights until they have atclerk of the district court. Article 1146, Id., tained the age of twenty-one years, yet inis as follows: "Such deputies shall take the fants are capable of executing mere powers, oath of office prescribed by the constitution. and, as agents, of making binding contracts They shall act in the name of their principal, with others. In England they are allowed to and may do and perform all such official acts hold the offices of park keepers, foresters, as may be lawfully done and performed by jailer, and mayor of a town; and in both such clerk in person.” Article 1149, Id., says England and this country they are capable of that such clerk shall be authorized to issue holding and discharging the duties of such all marriage licenses, to administer all oaths mere ministerial offices as call for the exerand affirmations, and to take affidavits and cise of skill and diligence only. They are not depositions to be used as provided by law in eligible to the offices which concern the adany of the courts. There is no statute defin- | ministration of justice, on account of their ing the qualifications of deputy clerks, or inexperience and want of judgment and learnwhat character of persons may be appointed ing,"-referring to Rex v. Dilliston, 3 Mod. to said office. Article 2471, Sayles' Civ. St., 222; Tyler, Inf. § 78.
222; Tyler, Inf. $ 78. In Wilson v. Genesee defines who are minors, making all male per- Circuit Judge, 87 Mich. 493, 49 N. W. 869, sons under 21 years of age minors. Article the question was whether a woman could be appointed to the office of deputy county clerk. a similar article in our present constitution is The statutes of that state in regard to the not without significance." qualifications of clerks and deputies are very It is to be observed, as before stated, that similar to our own statutes on the subject. neither our constitution nor laws on the subThe court holds in that case that the office of ject prescribe any qualification such as would county clerk is wholly ministerial, and when render a minor ineligible or disqualified from the law provides that a ministerial officer holding the office of deputy county clerk. As may appoint a deputy, for whose acts he and to the clerk himself, there might be some his sureties are responsible, and does not question, as he is required to execute a bond, limit or restrict him as to whom he appoints, which might involve the capacity to so conhe has authority to appoint whomsoever he tract, but there is no such requirement as to pleases. The person appointed acts for him; deputy county clerks.
deputy county clerks. The authorities cited or, in other words, he acts through his dep- establish the doctrine that, if the duties of uty. His choice is not confined to any race, deputy county clerk, under the provisions of sex, age, or color. In the case of Jeffries v. our statute, are ministerial, a minor can reHarrington, 11 Colo. 191, 17 Pac. 505, cited ceive the appointment, and execute the duin the above case, the supreme court of the ties required of said deputy. The duties of state of Colorado held that, under a provision county clerks in our state are regulated by of the constitution of said state, which pro- statute, and they appear to be purely minisvided that “no person except a qualified elec- terial; and, in addition to their other functor shall be elected or appointed to any civil tions, as has been seen, they have the genor military office in this state," the word eral power to administer all oaths and affirm“office,” as used therein, did not include dep- ations, and to take affidavits and depositions uty clerkships of county courts, and women to be used as provided by law in any of the may hold such deputy clerkships. These au- courts. Sayles' Civ. St. art. 1149. Deputies thorities seem to stand upon correct legal are authorized to act in the name of their principle. Our own supreme court, in the principal, and to do and perform all such case of Stensoff v. State, already cited, held official acts as may be legally done and perthat a citizen of the state moving from Har- formed by such clerk in person. By virtue ris to Liberty county, within so short a time of his office the county clerk is empowered to before the election as not to be a qualified administer oaths and affidavits generally. voter at such election in the latter county, This power appertains to his office, and bestill was eligible to election, and could hold longs to his official duties, and his deputy, in the office of tax assessor in Liberty county. this regard, has such power and authority In discussing the question the court quotes as he can exercise; and, in our opinion, the with approval from Barker v. People, 3 Cow. appointment of O. L. Bishop, by the clerk of 703, as follows: "Eligibility to office is not the county court of Johnson county, as his declared as a right or principle by any ex- deputy, was a legal and valid appointment. press terms of the constitution [of New York), Appellant, however, contends that the act but it rests as a just deduction from the ex- of said deputy in granting the license in this press powers and provisions of the system. case was a judicial act, inasmuch as said The basis of the principle is the absolute lib- deputy, if authorized to issue a license for his erty of the electors and the appointing au- principal, was thereby authorized to inquire thorities to choose and appoint any person as to the status of the parties desiring to prowho is not made ineligible by the constitu- cure a marriage license; that is, whether they tion. Eligibility to office, therefore, belongs were eligible and authorized by law to internot exclusively or specially to electors enjoy- marry. We do not think that his functions in ing the right of suffrage. It belongs equally
It belongs equally this regard were any more judicial than the to all persons whomsoever not excluded by registration and recording of a deed, for in the constitution.” Our supreme court then such case he would have to pass upon the proceeds to dispose of the question in the legality of the acknowledgment, to ascertain following language: “When a constitution and determine whether or not the acknowlhas been framed which contains no provision edgment was such as authorized a registradefining in terms who shall be eligible to of- tion of the deed. The act itself is only one fice, there is strength in the argument that requiring the exercise of such skill and dili'the intention was to confide the selection to gence as appertains to a ministerial office, the untrammeled will of the electors. Ex. and we think it clearly comes within the defiperience teaches us that in popular elections nition given in Rains v. Simpson, 50 Tex. those only are elected who are in sympathy 501, cited by counsel. In our opinion, 0. L. with the people, both in thought and aspira- Bishop, the officer before whom appellant tions; and that no law is needed to secure made the affidavit in question, was authorthe election of those only who reside in the ized to administer the same as the deputy county or district in which their functions are county clerk of Johnson county. Said affidato be performed. The constitution of 1869 vit was regular in form, and was voluntarily contained the provision that no person shall made by the appellant, and the evidence be eligible to any office, state, county, or abundantly shows that the same was false, municipal, who is not a registered voter in and that he knew it was false when he made the state.' Article 3, § 14. The omission of it. There being no error in the record, the
judgment and sentence of the lower court is
FORD V. STATE.
(Court of Criminal Appeals of Texas. Nov. 27, DAVIDSON, J. (dissenting). If a minor
1895.) can hold the position of deputy to the county
APPEAL-STATEMENT OF FACTS. clerk (and I am inclined to the opinion that
A statement of facts, filed in vacation, he can), then he can perform all acts and dis- without an order of court, does not become a charge all duties pertaining to the office of
part of the record.
Mann Trice, for the State.
HENDERSON, J. Appellant was convictin the same manner and to the same extent
ed of marking hogs, with intent to defraud, as can his principal. The statute confers no
and given two years in the penitentiary. authority upon the principal that is withheld
The statement of facts was filed in vacation, from his deputy. If the deputy cannot exer
in the absence of an order entered for that cise authority other than ministerial, it is not
purpose, hence cannot be considered. The by reason of his minority, but because of a want of authority in his principal. The ques
only error assigned is predicated on the intion as to the extent of legislative power con
sufficiency of the evidence to support the ferring authority upon county clerks not
judgment. Because the evidence is not be
fore us, the question will not be reviewed. But, purely ministerial is not involved in this case.
if we could entertain the statement of facts The judgment is affirmed.
incorporated in the record, we think the facts are sufficient to support the verdict and judgment. The judgment is affirmed,
GREEN V. STATE.
GILMORE v. STATE.
(Court of Criminal Appeals of Texas. Nov. 27,
On a prosecution for theft of a horse, the horse to his own use when he took it, he was refusal of an instruction to acquit if defendant, not guilty, sufficiently covered the question of when first accused, gave a reasonable and probintent at the time of the taking.
ably true account of his possession, which was Appeal from district court, Harris county:
not shown to be false, was not error, where the
court directed an acquittal if the jury had a E. D. Cavin, Judge.
reasonable doubt whether defendant got the Richard Green was convicted of horse horse from the owner to pledge for a loan. theft, and appeals. Affirmed.
Appeal from district court, Harris county; Mann Trice, for the State.
E. D. Cavin, Judge
Willie Gilmore was convicted of horse HENDERSON, J. This conviction was for theft, and appeals. Affirmed. horse theft. It is urged, for reversal, that Mann Trice, for the State. the court failed to charge the jury: "It was their duty to acquit the defendant, unless HENDERSON, J. The appellant, having they believed that the intent to steal the been convicted of horse theft, prosecutes an horse in question existed at the very time appeal. It is contended that the court erred of the taking of the same, no matter what in failing to instruct the jury "that when defendant afterwards did with the horse, the defendant, when first accused of the and no matter if, after he took the horse, he theft of the horse, gave a statement that was found such intent.” In this connection, the reasonable, and probably true, it was the charge given is as follows: "If, from the duty of the state to show that said stateevidence, you entertain a reasonable doubt ment was false, and, unless so shown, it was whether defendant intended to appropriate their duty to acquit.” Upon this phase of the horse to his own use when he took it, the case the jury were instructed as follows: if you find he took it, then find him not "If you entertain a reasonable doubt whethguilty.” This was a pointed, clear, and suffi- er the defendant got the said horse from one cient charge upon this issue. The evidence John Harris for the purpose of pawning him is not before us. Hence, we cannot inquire or borrowing money, and giving the horse into the sufficiency of the testimony to sus- as security for its payment, then find him tain the conviction. The judgment is af
The judgment is af- | not guilty.” This charge submits the law firmed.
pointedly to the issue made by appellant's ex
culpatory statement, by which he sought to his punishment assessed at confinement in the account for his possession of the stolen horse. penitentiary for 15 years; and from the judgThe evidence amply supports the verdict of the ment and sentence of the lower court he jury, and the judgment is affirmed.
prosecutes this appeal.
Appellant's first bill of exceptions relates to the overruling by the court of his motion for
a continuance. Appellant sought to continue TATE v. STATE.
the case on account of the absence of one (Court of Criminal Appeals of Texas. Nov. 27, Mrs. W. E. Tucker, alleged to reside in Bra1895.)
zoria county, Tex. As to the question of diliHOMICIDE — CONTINUANCE - EVIDENCE - INSTRUC- gence, we observe that the indictment in this TIONS-ON SELF-DEFENSE.
case was presented on the 13th day of No1. An indictment was returned in Novem- vember, 1893, and no effort appears to have ber. In the following March an attachment for a witness was issued, and returned unexecuted;
been exerted to procure the attendance of and a second one, issued May 16th for the wit
this witness until the 14th day of March, ness and her husband, was thereafter returned 1894, when an attachment issued for her to executed as to the husband, but not as to her. Brazoria county, Tex., at the instance of apHeld, that a motion for continuance, made May 28th, for absence of the witness, was properly pellant. This was returned executed as to denied for want of diligence.
some of the witnesses named in said attach2. A continuance of a trial for murder for ment, but no return was made as to Mrs. absence of a witness was properly denied where
Tucker. the affidavit showed that the witness would tes
On the 16th day of May, thereafter, tify that deceased, who, it was admitted, struck
another attachment was issued to said Brathe first blow, struck without provocation, and zoria county for this witness, and also for that he was in the act of drawing a weapon
others. It was executed as to the husband when shot, but did not state what the witness would testify to, or that there were facts to
of Mrs. Tucker, but there was no return as to support the conclusion that the blow was struck Mrs. Tucker. The case was tried on the without provocation, and other witnesses, near- 28th day of May. This was not sufficient er the parties when the shooting occurred, tes
diligence. If, however, we are permitted to tified that they could not hear what was said, and examination made immediately after look beyond the motion for a continuance, the killing showed no weapon on deceased, or and the bill of exceptions connected thereon the ground near him.
with, we find in another portion of the record 3. On a prosecution for murder, a witness for the state could testify that he believed that
that appellant proposed to prove before the he recognized defendant as one of several per- jury, by the husband of the absent witness, sons who came to his home to borrow a pistol that she was enceinte, and not able to be the night before the murder. 4. On a prosecution for murder, a witness
brought into court. Then the question OCfor the state, after testifying to the positions of
curs, is the testimony of this absent witness the deceased and defendant relative to him- of such material character as to have authorself and to each other, could state that from his
ized a continuance of the case, or to have position he could have seen any weapon in deceased's hands, and that he saw none.
invoked the action of the court in the grant5. On a prosecution for murder, a witness ing of a new trial? The bill of exceptions for defendant cannot testify as to the cause of as to the testimony of this witness shows that the absence of his wife, who was attached as a
she would testify that deceased struck the witness, where her absence was not referred to by the prosecution.
appellant the first blow. This, as we under6. On a prosecution for murder, an instruc- stand it, was not a controverted issue in the tion to find defendant guilty of murder in the
All of the state's witnesses who spoke second degree if the jury have a reasonable doubt as to the degree, and of manslaughter if
on this point testified to the same effect. It they have a reasonable doubt as to whether he
is further stated that it is expected to prove is guilty of murder in the second degree, on im- by ihis witness that this blow was struck plied malice, or of manslaughter, was proper. 7. Where, on a prosecution for murder,
without provocation on the part of appellant. there is evidence that deceased struck the first
This statement is rather a conclusion or opinblow, but that defendant had a grudge against ion on the part of the witness, without the him, and purposely met him, and that some
statement of any fact within her knowledge time elapsed after the meeting before the striking of the blow, during which defendant may
as to what was being said or done between have said something not heard by witnesses, the parties at the commencement of the diffito start the difficulty, it is proper to charge that culty. The record shows that this witness defendant cannot plead self-defense if he provoked the difficulty.
was at least 75 yards from the parties at the
time of the homicide. Others were nearer, Appeal from district court, Comal county;
and with equal facilities for seeing and hearEugene Archer, Judge.
ing, and while they testify that words passed Dave E. Tate was convicted of murder in
between the parties when they first met, and the second degree, and appeals. Affirmed.
before the deceased was heard to talk in a W. 0. Hutchison and J. D. Guinn, for ap- loud tone of voice, yet they were unable to repellant. Mann Trice, for the State.
late what was said between the parties; and
in the absence of some statement in the apHENDERSON, J. Appellant was tried in plication that this witness heard and underthe district court of Comal county on an in- stood the language used by the parties when dictment charging him with murder, was con- they met, or saw and understood all the acts victed of murder in the second degree, and of the parties at that time, we cannot as
sume, under the general allegation that the in its charge on reasonable doubt between first blow was struck without provocation, murder of the first and second degrees, and that she saw or heard acts or words not stat urges that the same, by its verbiage, was liaed in the application, and not testified to by ble to strip the appellant of his rights under other witnesses, with better opportunities the charge on manslaughter. We have carethan the absent witness. . Appellant also fully examined the charge of the court in this states that he expects to prove by said absent regard, and it tells the jury, in as plain words witness that at the time he shot deceased as the English language can convey, that if the deceased was in the act of attempting to they believe the appellant guilty of murder, draw a weapon from his pocket. Much of and have doubt as to the degree thereof, to what was said in regard to the last-mention find the appellant guilty of murder in the ed testimony is applicable to this; and, in second degree; and then tells the jury that if addition, we believe that, if said witness they have a reasonable doubt as to whether would testify as stated in the face of the rec appellant is guilty of murder in the second ord in this case, such evidence could not be degree, upon implied malice, or of manregarded as probably true, as a number of slaughter, to find the appellant guilty of manpersons went to the scene of the killing im- slaughter. In this we fail to see on what mediately, and no weapon was found on his grounds the appellant can complain. person, nor about there, on the ground. In The appellant urges that the court commitour opinion, the court correctly overruled the ted an error, after charging the jury on selfapplication for a continuance, and did not defense, in telling them that, if the appellant err in overruling the motion for a new trial provoked the difficulty, he cannot avail himon the grounds stated in appellant's motion self of the right of self-defense. He also for a continuance.
complains that the court, in giving certain Appellant objects to the testimony of state's charges prepared by appellant on the subject witness Brice, who stated that, in his judg of self-defense, limited said charges by the ment and belief, he recognized appellant at charge on provoking a difficulty by appelhis house, with several of the Tate boys, lant. The court gave in charge to the jury about 11 o'clock, the night before the homi the ordinary charge on self-defense, as apcide, who came there to borrow a pistol. plicable to the particular facts of this case, This testimony, in our opinion, was admissi and then, in a subsequent portion of the ble; and the fact that the witness could not charge, in a different section, he gave a be absolutely certain in his indentification of charge on self-defense, and limited the same appellant only went to the weight of his evi- | by a charge on provoking a difficulty by apdence, and not to its admissibility.
pellant. Afterwards the court gave two Appellant also insists that the court com charges on the subject of self-defense asked initted an error in permitting the state's wit- by appellant, and limited the same by referness Valentine Eberhard to state that he was ence to his charge on the provocation of the in a position to see if deceased had anything difficulty, as contained in subdivision 30 of in his hands during the time of the difficulty | the court's charge. If the facts of this case with appellant, and that he did not see any authorized a charge on provoking a difficulty, thing. This witness had already related all then there was no error in the court's giving that he had seen and heard between the par said charge in the way in which it was given. ties at and during the time of the difficulty; Thuston v. State, 21 Tex. App. 245, 17 S. W. had stated his position with reference to 474. them, and their relative positions with refer The facts of this case show a peculiar conence to each other, together with all the sur dition of things. No witness, save the aproundings; and we see no error in the court's pellant, who testified in his own behalf, was permitting him to state that he was in such a near enough to hear the conversation immeposition that he could see any weapon that diately preceding the homicide, although this the deceased may have had, and that he saw occurred not more than 50 yards from the none, The same view expressed with refer gin house, near which were several witnessence to this testimony holds good to the ob es. The appellant himself testifies positivejection made to the testimony of the witness ly as to how the difficulty began. He stated: Albert Satler, who was permitted to state That he started from the gin house to go to that, if any weapons had been on the ground his brother's house, some 200 or 300 yards where the difficulty occurred, he would have distant. That at the junction of the two seen them.
paths, some 50 yards from the gin, he met To our minds, clearly, the testimony offered deceased. He spoke to him by nodding or by appellant to prove before the jury, by bowing his head. Deceased said, "Hello, Tucker, that his wife was enceinte. and not you son of a bitch!” Appellant said, "You able to attend court, was inadmissible. So ought not to call me a son of a bitch because far as we are advised by the record, no com you are a better man, for it is hard to take.” ment or criticism was made by the state as Deceased said, “You will have to take it,” to the absence of said witness. No reason is and then struck appellant a blow with his shown why such testimony should have been fist in the face. Deceased then picked up a adduced before the jury.
rock, and threw it at appellant, who dodged The appellant contends that the court erred it; and then appellant drew his pistol, and