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any of the unsurveyed public land,” it shall WAGNER V. ROBISON, Com'r of General be first filed with the County Surveyor of Land Office et al. (No. 2932.)
the county where the area is situated. (Supreme Court of Texas. March 6, 1918.)  The purpose of these requirements is 1. MINES AND MINERALS O 6-PROSPECTING
clearly revealed in the Act and need not be PERMITS-PREREQUISITES.
discussed. Their observance, according to the Under Acts 33d Leg. c. 173, 8 3 (Vernon's class of the land or area for which the prosSayles' Ann. Civ. 1914, art. 5904b), requiring pecting permit is desired, is plainly essential applicant for prospecting permit on surveyed lands to first file application with the clerk of to the
right to have it issue. the county wherein the lands lie, and section 4
 The relator avers that the tract of land (article 5904c), requiring filing with the survey involved is a part of the "surveyed” public or if the land is island, salt water lakes, bays, land of the State. His application was filed etc., proper filing, in accord with the character of the land, is essential to the right to a permit. with the Clerk of the County Court of Har2. COURTS Om207(4) — MANDAMUS-ORIGINAL ris County, who was the proper official with APPLICATION-JURISDICTION.
whom to file it if the land is of that class. Where relator, seeking to compel issuance of On the other hand, the respondent Bailey deprospecting permit, alleged the land had been clares under oath in his answer that the surveyed, which the defendant denied, there was an issue of fact necessary to be determined tract constitutes no part of the "surveyed" as determinative of rights of the parties, beyond land of the State, but is wholly submerged the jurisdiction of the Supreme Court, on origi- land, lying wholly under water in Tabbs Bay, nal application in mandamus.
a salt water bay and an arm of San Jacinto Mandamus by Abe W. Wagner against J. Bay. Whether the relator has complied with T. Robison, as Commissioner of the General the Act in the matter of filing his applicaLand Office, and L. H. Bailey joined as re- tion for the permit, which, apart from any spondent. Petition dismissed for want of other question, would be necessary to entitle jurisdiction,
him to a mandamus, depends upon the soluLove, Channell & Fouts and Wagner & tion of this issue made by the pleadings. It Wagner, all of Houston, for relator. T. H. presents an issue of fact which we are withStone and H. E. Stephenson, both of Hous- out power to determine. ton, for corespondent Bailey. B. F. Looney,
The petition for the writ of mandamus is Atty. Gen., and G. B. Smedley, Asst. Atty. therefore dismissed for want of jurisdiction. Gen., for respondent Robison.
Edwards v. Terrell, 100 Tex, 26, 93 S. W.
426. PHILLIPS, C. J. The relator here seeks a mandamus to require the Commissioner of the General Land Office to issue him, under
FOX v. STATE. (No. 4906.) the Act of the Thirty-third Legislature, | (Court of Criminal Appeals of Texas. Feb. 20, (Chapter 173), a permit to prospect for oil
1918.) and gas upon a certain tract of land in Har- CRIMINAL LAW On 1159(3)-APPEAL-REVIEW ris County. A like permit covering the same
—TRIAL-JURY QUESTION. land has been previously issued by the Com
Where the evidence as to defendant's guilt
was conflicting, the question was for the jury, missioner to L. H. Bailey, who is joined as a and the verdict cannot be disturbed. respondent. The issuance of the previous permit to Bailey is alleged as the Commis
Appeal from District Court, Haskell Counsioner's reason for refusing the relator's ap- ty; Jno. B. Thomas, Judge. plication. The relator assails the validity of
C. P. Fox was convicted of manslaughter, the permit granted to Bailey upon the ground and he appeals. Affirmed. that it is violative of the constitutional pro E. B. Hendricks, Asst. Atty. Gen., for the vision declaring, "Nor shall any member of State. the legislature be interested, either directly or indirectly, in any contract with the state, PRENDERGAST, J. Appellant was conor any county thereof, authorized by any law victed of manslaughter and assessed the lowpassed during the term for which he shall est punishment. have been elected,"—Section 18 of Article There are no bills of exception and no com3—he having been a member of the Legisla- plaint of the court's charge. That appellant ture which adopted the Act.
stabbed and cut deceased with his knife and Section 3 of the Act provides that an ap- killed him is an established fact, and not plicant for the prospecting privilege upon disputed. any of “the surveyed lands" of the State The testimony by the state was clearly suffiwith which it deals, shall first file his appli- cient to show appellant guilty of manslaughcation with the County Court Clerk of the ter, if not of murder, and to disprove appelcounty in which the land lies.
lant's claim that he killed deceased in selfSection 4 declares that if the application defense; while the testimony of appellant, if be sought as to “any of the State's islands, believed, might have been sufficient to have salt water lakes, bays, marshes, reefs, and authorized his acquittal. It was a question fresh water lakes owned by the State, or in for the jury, and they solved it against appel
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lant. The charge of the court was full and, the bill were agreed to by the district attorapt submitting every issue in appellant's fa- ney and approved by the court. The subvor which was authorized or raised by the stance of this bill shows as above indicated, testimony. There is no complaint in any and that the court directed the drawing of particular to the court's charge. Under the the regular jury for the third week of court, circumstances we are not authorized to dis- which begun on the 5th of November; this turb the verdict.
case being set for the 7th of that month. The judgment is therefore affirmed.
This consisted of 24 names. The court also directed the sheriff to select a sufficient number of jurors from the county at large to
finish the number ordered, which was 48. CLAYTON V. STATE. (No. 4890.)
The 48 then were to constitute the special (Court of Criminal Appeals of Texas. Feb. 13, venire. The 24 jurors for the third week of 1918.)
court, commencing on the 5th of November, 1. JURY 70(8)—VENIRE-DISCHARGE-SPE- were drawn from the box; the other 24 were CIAL VENIRE.
Where there were 84 jurors selected for the not, and the sheritf filled out the special ve term and 60 were discharged without being nire list with those he summoned from the drawn or serving on a venire, the drawing of the county at large. It is also shown that the remaining 24 and the adding of 24 names by the jury for the first week of court, commencing sheriff, in a capital case, was not a compliance with Code Cr. Proc. 1911, art. 661, relating to the 22d of October, consisted of 36 jurors drawing of special venire, and a conviction can- for the week; that they were impaneled for not stand.
service but were discharged after one day's 2. JURY Cm82(3) — CAPITAL CASES-PUNISH-service. The jurors for the second week, MENT IMPOSED-RIGHT OF DEFENDANT.
That the jury imposed imprisonment, in- commencing on the 29th of October, consisted stead of death, in capital case, does not affect of 24 jurors; they were impaneled and servthe right of the defendant to a venire in ac- ed one day and were discharged. As before cordance with law relating to capital cases.
stated, the jurors for the third week, com3. HOMICIDE O.164-BLINDNESS OF DECEAS- mencing the 5th of November, consisted of ED-EVIDENCE.
In homicide case, evidence that deceased was 24 jurors. These added together would make nearly blind is inadmissible unless defendant a total number of 84 regular jurors for the knew of the blindness.
term. The names of none of these jurors 4. CRIMINAL LAW (ww 552(1) – BLINDNESS OF
were placed in the box to be drawn as speDECEASED-KNOWLEDGE OF ACCUSED-CIRCUMSTANTIAL PROOF.
cial veniremen, except those of the third That defendant in homicide case had knowl- week. There is no question of the aboveedge that deceased was nearly blind may be stated facts. shown from circumstances.
 Appellant moved to quash the special Appeal from District Court, Uvalde Coun- venire because not drawn in accordance with ty; Joseph Jones, Judge.
the statute, and on further grounds. We are G. E. Clayton was convicted of murder, of opinion that the motion was timely taken and he appeals. Reversed and remanded. and should have been sustained. Article 661,
L. Old and T. P. Hull, both of Uvalde, for C. C. P., provides the manner of drawing a appellant. E. B. Hendricks, Asst. Atty. Gen., special venire. It provides that, whenever for the State.
the names of the persons selected by the
jury commissioners to do jury services for DAVIDSON, P. J. This conviction was for the term shall have been drawn one time to murder.
answer summons to a venire facias, then the When the indictment was returned on the names of the persons selected by the com25th of October, 1917, appellant and the dis- missioners, and which form the special vetrict attorney had an agreement to set the nire list, shall be placed upon tickets of simicase for the 7th of November, and the dis- lar size and color of paper, and the tickets trict attorney to request the drawing of a placed in a box and well shaken up. From special venire. The district attorney went this box the clerk, in the presence of the away, and in accordance with this agree- judge, in open court, shall draw the number ment appellant's counsel presented this mat- of names required for further venire servter to the court. The court asked appel- ice, and shall prepare a list of such names, lant's counsel if he would be ready for trial. in the order in which they are drawn from He indicated he thought he would not be the box, and attach such list to the writ, ready; therefore the court refused the re which is to be delivered to the sheriff; and quest. On the 29th of October, however, the it further provides it is the duty of the clerk court of his own motion, and it seems with to prevent the name of any person from apout the knowledge of appellant or his counsel, pearing more than twice on all of such lists. ordered the case set down for trial on the This article is in full force and effect, and 7th of November and the drawing of a spe- it would seem, not only by its terms, but uncial venire, directing the manner and terms der the decisions, to constitute the means of of such drawing. The bill of exceptions is selecting special venires in counties other quite lengthy, and all of the facts stated in ) than those in which juries are drawn from
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a jury wheel. When this list has been made , dence to these amendments. From no view out as drawn in accordance with the above point, as we understand this record, was a statute, it shall be delivered to the sheriff, special venire drawn according to law. In who shall summon the jurors. There is no fact, it may be said that the venire as drawn reason shown why this law should not have was not a legal one, and was not within the been followed and the jury drawn from the terms of any of the statutes. It was not one 84 jurors drawn for the term. It is shown of those emergencies where no jurors had and agreed that this was the only capital been drawn by the commissioners; therefore case on the docket; therefore none of the that statue had no application. jurors could have served on any previous [3, 4] There is another question presented venire during that term. Under the terms of by bill of exceptions in regard to the admisthe statute, supra, the court was not justified sion of certain testimony which showed that in ordering the venire drawn and summoned the deceased was blind or nearly so. The as was done. This would in fact hardly be bill is not right clear and distinct; but, if called a special venire. Only 24 names were upon another trial this evidence is sought by placed upon the venire list handed the sher- the state, defendant's objection would be well iff by the clerk out of the 48. The 24 to be taken unless he knew of the condition of the summoned by the sheriff were placed on the eyes of the deceased at the time of the homilist subsequently; at least, were not drawn cide. If he was aware of the partial blindby the clerk. There was no question of waiv- ness of deceased at the time of the homicide, er on the part of the defendant. He urged it would be admissible; otherwise it would his objections, but they were overruled. The not be. This knowledge may be shown from court qualifies the bill, or makes the state circumstances. ment that the district attorney waived the The application for a continuance is not death penalty. We are not impressed with discussed. It is not deemed necessary under this as a reason for the manner of drawing the disposition of the case. the special venire. If there is any virtue in There are quite a lot of criticisms of the the waiver of the death penalty, that might court's charge. We deem it unnecessary to have operated to excuse the drawing of the go into an extended review of these matters. venire at all; but the writer is clearly of the The charge is fairly well written. There opinion that the district attorney has no right may be some criticism of the charge on selfto waive the verdict of the jury or a part of defense which seems to have some merit. To the legal penalty. He could have, with per- meet this appellant asked a special charge mission of the court, dismissed the prosecu- which, we think, should be given upon antion against appellant as to murder and tried other trial, or the court's charge changed so him for manslaughter; but this would not as to conform with the matter set out in the Justify his waiving a part of the penalty for requested instruction. We deem It unnecesthe offense for which he was being prose-sary to discuss it. It is of no particular cuted.
value to any other case except the instant  Life imprisonment is part of the pun- case in view of another trial, but in the recishment in capital cases. The jury may exer- ord it is known as special charge No. 2 recise their authority and power in awarding quested by appellant. The court refused it life imprisonment in place of the death pen- because he says it was covered by the main alty. It is an alternative punishment. But charge. We are of opinion there is enough it did not operate to deprive defendant of difference in this charge and that given by his right to have a venire, and when we go the court to have justified, if not required, to the record it is shown that challenges for the court to give the special instruction. cause were urged because of the questions of The judgment is reversed, and the cause conscientious scruples in awarding the death remanded. penalty. It seemed to have been exercised with reference to four jurors. Submitting the punishment for murder, the court instructed the jury that the punishment shall be by
PARKER v. STATE. (No. 4754.) death, confinement in the penitentiary for life, or for any term of years not less than (Court of Criminal Appeals of Texas. Feb. 20,
1918.) five, and told them if they should convict for murder they might fix his punishment at 1. CRIMINAL LAW Ow721(3) CONDUCT OF
COUNSEL death or confinement in the penitentiary for
FAILURE TO TESTIFY. life, or for any term of years not less than A statement, by the state's attorney to the five. It is deemed unnecessary to review the jury, that "defendant is guilty as shown by cirauthorities and the decisions of the court cumstances so strong, that he could not face you
and give you a satisfactory explanation," aland the changes in legislative enactments luding to defendant who had not testified, was during recent years. There have been quite in violation of Vernon's Ann. Code Cr. Proc. a number of these changes, and the decisions 1916, art. 790, providing that defendant's fail
ure to testify in his own bebalf shall not be alhave been changed, of course, to meet the luded to or commented on by counsel, and conamended legislation to conform the jurispru- istituted reversible error.
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2. HOMICIDE w169(1)-EVIDENCE-ADMISSI- , conduct and statement by the county attorney, BILITY.
used under the circumstances, was a direct A witness in a murder case could testify violation of the statute, prohibiting a reference that deceased was in his employé as a driver to the fact of the defendant's failure to testify, of his car and drove it on the night of the homi- was an invasion on the defendant's rights and cide, but testimony that he received a particu- was highly prejudicial to the defendant and was lar telephone call and sent the driver in response | irremediable, and the defendant here now tenthereto was inadmissible.
ders this his bill of exceptions to the argument 3. WITNESSES 315(2)—IMPEACHMENT-Con- and conduct of the county attorney, as aforeVICTION.
said, and asks that the same be examined, ap. In a murder case any witness may be im- proved and ordered filed as a part of the record peached by showing that he has been convicted in this case, and which is accordingly done." or properly indicted for a felony or misdemeanor involving moral turpitude, but a charge of ag This bill is approved by the judge withgravated assault and a conviction of simple as.
out an explanation or qualification. The bill, sault is inadmissible. 4. WITNESSES 345(1)-IMPEACHMENT-AR
as seen, does not show that the court made REST.
any ruling whatever. That the remarks of Evidence in a murder case that a witness the county attorney were a direct allusion had been in jail or arrested for a matter not to the appellant's failure to testify, and, while involving moral turpitude was not admissible in brief, that it was a comment on that fact to impeachment. 5. HOMICIDE 169(2)—EVIDENCE-ADMISSI- the jury, cannot be doubted. It was in diBILITY.
rect violation of the statute (article 790, C. C. In a prosecution for murder where the state P.) and the many decisions of this court holdproved that on the night of the homicide defendant said that he was going to whip the driving that such action by the county attorney er of witness' car who was the deceased, the presents reversible error. See decisions noted state might prove by such witness that deceased in Vernon's Ann. Crim. Stats. under said arwas the only driver of any car he had at that ticle. time.
 Appellant has another bill objecting to 6. HOMICIDE 170_EVIDENCE-ADMISSIBIL
the testimony of Mr. Wilkerson to the effect In a prosecution for murder it was not er- that some 20 minutes before deceased was ror to admit testimony that defendant was killed he received a 'phone call from “100," wearing a hat like the one the witness wore which was the whorehouse, and that he sent on the night of the homicide, which hat was deceased, who was driving his car that night, exhibited to the jury.
down there in response to said call. When Appeal from District Court, Milam Coun- this testimony was offered and appellant obty; John Watson, Judge.
jected thereto, the county attorney said that Tom Parker was convicted of murder, and he would afterwards introduce testimony he appeals. Reversed and remanded.
showing the connection and relevancy of such Lyles & Lyles and Chambers & Wallace, all testimony. The bill shows that he did not of Cameron, for appellant. E. B. Hendricks, later do that at all. The witness could test Asst. Atty. Gen., for the State.
fy properly that deceased was in his employ
as a driver of his car and drove it that night, PRENDERGAST, J. Appellant appeals but that he received this particular call, and from a conviction for murder.
sent him to that particular place in response The evidence was wholly circumstantial to thereto, might not be admissible unless it establish his guilt. he did not testify.
was shown to have had some bearing on some  Appellant has this bill which, after the fact in the case. How it could have been inproper heading, shows:
jurious to appellant is not shown. It is per“That on the trial of the above styled and haps harmless. But, if objected to on another numbered cause, that after the introduction of trial, unless in some way connected up so as the evidence had been closed by both the state to show its materiality it should not be adand the defendant, and after the charge of the
mitted. court had been read to the jury, and while the county attorney, the Hon. Roy Baskin, was [3, 4] Any vitness can be impeached by opening the case for the state, that he did say showing, when not too remote, that he has to the jury, and use the following language sub- been convicted or properly indicted for a felstantially: 'Gentlemen of the jury, the defendant is guilty as shown by circumstances SO
ony or a misdemeanor involving moral turpistrong that he could not face you and give a tude; but no other misdemeanor convictions satisfactory explanation.'
are admissible for impeachment purposes. "And be it further remembered that the de. These principles are so well established by fendant had not testified in the case, or offered to testify, and that immediately upon the mak- so many decisions we cannot understand how ing of said statement by the county attorney it could be contended that a charge for ag. the defendant's counsel did thereupon except to gravated assault and a conviction of simple the same, as a direct reference to the fact that the defendant had not testified in the case and assault in any other misdemeanor case not that the language used was a direct charge involving moral turpitude could be admissible. that the reason that the defendant did not take The court therefore did not err in excluding the stand and testify was because he could not such testimony in this case, where an atface the jury with a satisfactory explanation, tempt was made to introduce such misdeand assumed from such fact that the reason the defendant had not taken the stand was that meanor convictions to impeach the state's he had committed the homicide, and that said I witness Adge Robinson. Nor was evidence
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that he had been in jail or arrested on any Dan Earnest was convicted of giving insuch charge admissible.
toxicating liquor to a minor, and he appeals.  The state proved that, on the same Reversed and remanded. night deceased was killed, appellant said that Geo. L. Mayfield, of Plainview, Jas. A. he was going to whip the driver of Mr. Wil. Stephens, of Benjamin, and G. E. Hamilton, kerson's car. He did not call the name of the of Matador, for appellant. E. B. Hendricks, deceased. It was therefore permissible for Asst. Atty. Gen., for the State. the state to prove by Mr. Wilkerson that deceased was the only driver of any car he had DAVIDSON, P. J. The charging part of at that time.
the indictment is as follows: That Dan  Nor did the court err in permitting the Earnest, on the 15th day of November, 1916, witness Penn Wolf to testify, in substance, in the county of Motley and state of Texas, that appellant was wearing a hat like the one did then and there unlawfully and knowhe (the witness) wore the night deceased was ingly give and cause to be given spirituous, killed, and in then procuring his hat and ex- vinous and intoxicating liquor to Hattie hibiting it to the jury and testifying that the Williams, then and there being under the hat deceased wore that night was something age of 21 years without the written consent like his “flat top." This testimony was ad- of the parent or guardian or of some one missible.
standing in the place and stead of parent or As the case is to be reversed, it is unnec-guardian of her the said , against the essary to pass on whether the court erred in peace and dignity of the state." overruling his motion for a continuance.
 Motion was made to quash as well as For the error above pointed out, the judg. in arrest of judgment. We are of opinion this ment is reversed, and the case remanded.
indictment is not sufficient. It leaves it in
ed as to Hattie Williams or defendant, and EARNEST v STATE. (No. 4897.)
also as to the question of consent. This un
certainty is re-enforced by the fact that, (Court of Criminal Appeals of Texas. Feb. 13, instead of charging that the parent or guard1918.)
ian stood in such relation to Hattie Wil1. INTOXICATING LIQUORS C219, 222 – IN- liams, it fails to set out her name, and leaves DICTMENT-GIFT TO MINOR-UNCERTAINTY.
it blank. More care and caution should be An indictment, that defendant gave intoxicating liquor to one named, "then and there be taken in writing indictments charging stating under the age of 21 years without the writ- utory offenses. It could have been just as ten consent of the parent or guardian
easily charged, and should have been, that of the said
against the peace," etc., was too uncertain as to who was the minor and as
if it was intended to charge appellant with to consent.
giving intoxicating liquor to Hattie Wil2. INTOXICATING LIQUORS m159(2)—MINORS liams, she, Hattie Williams was then and -KNOWLEDGE.
there under the age of 21 years. This would In prosecution for giving intoxicating liq- have been specific, and would have raised no uors to minor, the state must show, by evidence positive or circumstantial, that defendant knew question for decision on appeal. Upon anthat one obtaining liquor was a minor. other trial, either proper indictment or com3. INTOXICATING LIQUORS Cw236(15) – Mi- plaint and information should be drawn in NORS-KNOWLEDGE OF MINORITY-PROOF.
the terms of the law. In prosecution for giving intoxicating liquor to minor, mere proof that the girl obtaining lig
[2, 3] In order to constitute this offense uor was only 17 was insufficient to warrant the evidence must show that the indicted conviction, in the absence of evidence as to her party knowingly gave or sold intoxicants to size and development.
a minor. The evidence must show, not only 4. WITNESSES 374(1)—Bias-MOTIVE.
In prosecution for giving intoxicating lig- the minority, but knowledge of that fact on uor to minor girl, it was error to exclude evi- the part of the accused. This may be done dence that witness testifying as to giving, of by circumstances in the absence of positive liquor had reasons and motives for so testifying. evidence. The only evidence in the case 5. CRIMINAL LAW C 730(13) MISCONDUCT OF PROSECUTING ATTORNEY.
bearing upon the age of Hattie Williams was In prosecution for giving intoxicating liquor that she was 17 years of age last July, to minor girl, it was reversible error for court which would make her in her eighteenth not to admonish jury, where county, attorney year at the time of the trial. Under repeatstated that defendant was indicted for rape; there being no evidence introduced to that efed decisions of this court this evidence is fect.
not sufficient to show knowledge on the part 6. CRIMINAL LAW 789(3) REASONABLE of the accused of the minority. The cases DOUBT-INSTRUCTIONS.
are collated by Mr. Branch in his Annotated In prosecution for giving intoxicating liquor to minor, it was error to refuse to instruct P. C., p. 685. Hunter v. State, 18 Tex. App. that the state must prove beyond reasonable 448, 51 Am. Rep. 319; Williams v. State, 23 doubt that defendant knew person obtaining liq. Tex. App. 70, 3 S. W. 661; Schurzer v. State, vor was a minor.
25 S. W. 23; Henderson v. State, 37 Tex. Appeal from Motley County Court; A. B. Cr. R. 79, 38 S. W. 617; Sinclair v. State, Crane, Judge.
70 S. W. 218; Williams v. State, 65 Tex. Cr. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes