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WAGNER v. ROBISON, Com'r of General
Land Office et al. (No. 2932.)

(Supreme Court of Texas.
1. MINES AND MINERALS
PERMITS-PREREQUISITES.

March 6, 1918.)
6-PROSPECTING

Under Acts 33d Leg. c. 173, § 3 (Vernon's Sayles' Ann. Civ. 1914, art. 5904b), requiring applicant for prospecting permit on surveyed lands to first file application with the clerk of the county wherein the lands lie, and section 4 (article 5904c), requiring filing with the surveyor if the land is island, salt water lakes, bays, etc., proper filing, in accord with the character of the land, is essential to the right to a permit. 2. COURTS 207(4) — MANDAMUS-ORIGINAL APPLICATION-JURISDICTION.

Where relator, seeking to compel issuance of prospecting permit, alleged the land had been surveyed, which the defendant denied, there was an issue of fact necessary to be determined as determinative of rights of the parties, beyond the jurisdiction of the Supreme Court, on original application in mandamus.

Mandamus by Abe W. Wagner against J. T. Robison, as Commissioner of the General Land Office, and L. H. Bailey joined as respondent. Petition dismissed for want of jurisdiction.

any of the unsurveyed public land," it shall be first filed with the County Surveyor of the county where the area is situated.

[1] The purpose of these requirements is clearly revealed in the Act and need not be discussed. Their observance, according to the class of the land or area for which the prospecting permit is desired, is plainly essential to the right to have it issue.

[2] The relator avers that the tract of land involved is a part of the "surveyed" public land of the State. His application was filed With the Clerk of the County Court of Harris County, who was the proper official with whom to file it if the land is of that class. On the other hand, the respondent Bailey declares under oath in his answer that the tract constitutes no part of the "surveyed" land of the State, but is wholly submerged land, lying wholly under water in Tabbs Bay, a salt water bay and an arm of San Jacinto Bay. Whether the relator has complied with the Act in the matter of filing his application for the permit, which, apart from any other question, would be necessary to entitle him to a mandamus, depends upon the solution of this issue made by the pleadings. It presents an issue of fact which we are with

Love, Channell & Fouts and Wagner &
Wagner, all of Houston, for relator. T. H.
Stone and H. E. Stephenson, both of Hous-out power to determine.
ton, for corespondent Bailey. B. F. Looney,
Atty. Gen., and G. B. Smedley, Asst. Atty.
Gen., for respondent Robison.

The petition for the writ of mandamus is therefore dismissed for want of jurisdiction. Edwards v. Terrell, 100 Tex. 26, 93 S. W. 426.

FOX v. STATE. (No. 4906.)

CRIMINAL LAW

1918.)

1159(3)-APPEAL-REVIEW

-TRIAL-JURY QUESTION.

was conflicting, the question was for the jury, Where the evidence as to defendant's guilt and the verdict cannot be disturbed.

Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.

PHILLIPS, C. J. The relator here seeks a mandamus to require the Commissioner of the General Land Office to issue him, under the Act of the Thirty-third Legislature, (Court of Criminal Appeals of Texas. Feb. 20, (Chapter 173), a permit to prospect for oil and gas upon a certain tract of land in Harris County. A like permit covering the same land has been previously issued by the Commissioner to L. H. Bailey, who is joined as a respondent. The issuance of the previous permit to Bailey is alleged as the Commissioner's reason for refusing the relator's application. The relator assails the validity of the permit granted to Bailey upon the ground that it is violative of the constitutional provision declaring, "Nor shall any member of the legislature be interested, either directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall 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.

Section 3 of the Act provides that an applicant for the prospecting privilege upon any of "the surveyed lands" of the State with which it deals, shall first file his application with the County Court Clerk of the county in which the land lies.

Section 4 declares that if the application be sought as to "any of the State's islands, salt water lakes, bays, marshes, reefs, and fresh water lakes owned by the State, or in

C. P. Fox was convicted of manslaughter, and he appeals. Affirmed.

E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J. Appellant was convicted of manslaughter and assessed the lowest punishment.

stabbed and cut deceased with his knife and killed him is an established fact, and not disputed.

The testimony by the state was clearly sufficient to show appellant guilty of manslaughter, if not of murder, and to disprove appellant's claim that he killed deceased in selfdefense; while the testimony of appellant, if believed, might have been sufficient to have authorized his acquittal. It was a question for the jury, and they solved it against appel

lant. The charge of the court was full and apt submitting every issue in appellant's favor which was authorized or raised by the testimony. There is no complaint in any particular to the court's charge. Under the circumstances we are not authorized to disturb the verdict.

the bill were agreed to by the district attorney and approved by the court. The substance of this bill shows as above indicated, and that the court directed the drawing of the regular jury for the third week of court, which begun on the 5th of November; this case being set for the 7th of that month. 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. The 48 then were to constitute the special venire. The 24 jurors for the third week of court, commencing on the 5th of November, 70(8)—VENIRE-DISCHARGE-SPE- were drawn from the box; the other 24 were

The judgment is therefore affirmed.

CLAYTON v. STATE. (No. 4890.) (Court of Criminal Appeals of Texas. Feb. 13, 1918.) 1. JURY

CIAL VENIRE. Where there were 84 jurors selected for the term and 60 were discharged without being drawn or serving on a venire, the drawing of the remaining 24 and the adding of 24 names by the sheriff, in a capital case, was not a compliance with Code Cr. Proc. 1911, art. 661, relating to drawing of special venire, and a conviction cannot stand.

2. JURY 82(3) — CAPITAL CASES-PUNISHMENT IMPOSED-RIGHT OF DEFENDANT.

That the jury imposed imprisonment, instead of death, in capital case, does not affect the right of the defendant to a venire in accordance with law relating to capital cases. 3. HOMICIDE 164-BLINDNESS OF DECEASED-EVIDENCE.

In homicide case, evidence that deceased was nearly blind is inadmissible unless defendant knew of the blindness.

4. CRIMINAL LAW 552(1) — BLINDNESS OF DECEASED-KNOWLEDGE OF ACCUSED-CIR

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not, and the sheriff filled out the special venire list with those he summoned from the county at large. It is also shown that the jury for the first week of court, commencing the 22d of October, consisted of 36 jurors for the week; that they were impaneled for service but were discharged after one day's service. The jurors for the second week, commencing on the 29th of October, consisted of 24 jurors; they were impaneled and served one day and were discharged. As before stated, the jurors for the third week, commencing the 5th of November, consisted of 24 jurors. These added together would make a total number of 84 regular jurors for the term. The names of none of these jurors were placed in the box to be drawn as special veniremen, except those of the third week. There is no question of the abovestated facts.

[1] Appellant moved to quash the special

Appeal from District Court, Uvalde Coun- venire because not drawn in accordance with ty; Joseph Jones, Judge.

G. E. Clayton was convicted of murder, and he appeals. Reversed and remanded. L. Old and T. P. Hull, both of Uvalde, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

the statute, and on further grounds. We are of opinion that the motion was timely taken and should have been sustained. Article 661, C. C. P., provides the manner of drawing a special venire. It provides that, whenever 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 appellant's counsel if he would be ready for trial. He indicated he thought he would not be ready; therefore the court refused the request. On the 29th of October, however, the court of his own motion, and it seems without the knowledge of appellant or his counsel, ordered the case set down for trial on the 7th of November and the drawing of a special venire, directing the manner and terms of such drawing. The bill of exceptions is quite lengthy, and all of the facts stated in

ice, and shall prepare a list of such names, in the order in which they are drawn from the box, and attach such list to the writ, which is to be delivered to the sheriff; and it further provides it is the duty of the clerk to prevent the name of any person from appearing more than twice on all of such lists. This article is in full force and effect, and it would seem, not only by its terms, but under the decisions, to constitute the means of selecting special venires in counties other than those in which juries are drawn from

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

dence to these amendments. From no view point, as we understand this record, was a special venire drawn according to law. In fact, it may be said that the venire as drawn was not a legal one, and was not within the terms of any of the statutes. It was not one of those emergencies where no jurors had been drawn by the commissioners; therefore that statue had no application.

The application for a continuance is not discussed. It is not deemed necessary under the disposition of the case.

There are quite a lot of criticisms of the court's charge. We deem it unnecessary to go into an extended review of these matters. The charge is fairly well written. There may be some criticism of the charge on selfdefense which seems to have some merit. To meet this appellant asked a special charge which, we think, should be given upon another trial, or the court's charge changed so as to conform with the matter set out in the requested instruction. We deem it unnecessary to discuss it. It is of no particular value to any other case except the instant

a jury wheel. When this list has been made out as drawn in accordance with the above statute, it shall be delivered to the sheriff, who shall summon the jurors. There is no reason shown why this law should not have been followed and the jury drawn from the 84 jurors drawn for the term. It is shown and agreed that this was the only capital case on the docket; therefore none of the 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 death penalty. We are not impressed with this as a reason for the manner of drawing the special venire. If there is any virtue in the waiver of the death penalty, that might have operated to excuse the drawing of the venire at all; but the writer is clearly of the opinion that the district attorney has no right to waive the verdict of the jury or a part of the legal penalty. He could have, with permission of the court, dismissed the prosecution against appellant as to murder and tried him for manslaughter; but this would not Justify his waiving a part of the penalty for the offense for which he was being prosecuted. [2] Life imprisonment is part of the pun-case in view of another trial, but in the recishment in capital cases. The jury may exercise their authority and power in awarding life imprisonment in place of the death penalty. It is an alternative punishment. But it did not operate to deprive defendant of his right to have a venire, and when we go to the record it is shown that challenges for cause were urged because of the questions of conscientious scruples in awarding the death 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 death, confinement in the penitentiary for life, or for any term of years not less than five, and told them if they should convict for murder they might fix his punishment at death or confinement in the penitentiary for life, or for any term of years not less than five. It is deemed unnecessary to review the authorities and the decisions of the court and the changes in legislative enactments during recent years. There have been quite a number of these changes, and the decisions have been changed, of course, to meet the amended legislation to conform the jurispru-stituted reversible error.

ord it is known as special charge No. 2 re-
quested by appellant. The court refused it
because he says it was covered by the main
charge. We are of opinion there is enough
difference in this charge and that given by
the court to have justified, if not required,
the court to give the special instruction.
The judgment is reversed, and the cause
remanded.

PARKER v. STATE. (No. 4754.) (Court of Criminal Appeals of Texas. Feb. 20, 1918.)

1. CRIMINAL LAW 721(3) - CONDUCT OF
COUNSEL COMMENTS ON
FAILURE TO TESTIFY.

DEFENDANT'S

A statement, by the state's attorney to the jury, that "defendant is guilty as shown by circumstances so strong that he could not face you and give you a satisfactory explanation," alluding to defendant who had not testified, was in violation of Vernon's Ann. Code Cr. Proc. 1916, art. 790, providing that defendant's failure to testify in his own behalf shall not be alluded to or commented on by counsel, and con

BILITY.

2. HOMICIDE 169(1)-EVIDENCE-ADMISSI- | conduct and statement by the county attorney, 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 and conduct of the county attorney, as aforesaid, and asks that the same be examined, approved and ordered filed as a part of the record in this case, and which is accordingly done."

3. WITNESSES 345(2)-IMPEACHMENT-CON

VICTION.

In a murder case any witness may be impeached by showing that he has been convicted or properly indicted for a felony or misdemeanor involving moral turpitude, but a charge of aggravated assault and a conviction of simple as 345(1)-IMPEACHMENT-AR

sault is inadmissible. 4. WITNESSES

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This bill is approved by the judge without an explanation or qualification. The bill, as seen, does not show that the court made any ruling whatever. That the remarks of the county attorney were a direct allusion to the appellant's failure to testify, and, while brief, that it was a comment on that fact to the jury, cannot be doubted. It was in direct violation of the statute (article 790, C. C. P.) and the many decisions of this court hold

In a prosecution for murder where the state proved 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.

6. HOMICIDE

ITY.

170-EVIDENCE-ADMISSIBIL

In a prosecution for murder it was not error to admit testimony that defendant was wearing a hat like the one the witness wore on the night of the homicide, which hat was exhibited to the jury.

Appeal from District Court, Milam County; John Watson, Judge.

[2] Appellant has another bill objecting to the testimony of Mr. Wilkerson to the effect that some 20 minutes before deceased was killed he received a 'phone call from "100,” which was the whorehouse, and that he sent deceased, who was driving his car that night, down there in response to said call. When this testimony was offered and appellant objected thereto, the county attorney said that

Tom Parker was convicted of murder, and he would afterwards introduce testimony he appeals. Reversed and remanded.

Lyles & Lyles and Chambers & Wallace, all of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J. Appellant appeals

from a conviction for murder.

The evidence was wholly circumstantial to establish his guilt. he did not testify. [1] Appellant has this bill which, after the proper heading, shows:

"That on the trial of the above styled and numbered cause, that after the introduction of the evidence had been closed by both the state and the defendant, and after the charge of the court had been read to the jury, and while the county attorney, the Hon. Roy Baskin, was opening the case for the state, that he did say to the jury, and use the following language substantially: Gentlemen of the jury, the defendant is guilty as shown by circumstances so strong that he could not face you and give a satisfactory explanation.'

showing the connection and relevancy of such
testimony. The bill shows that he did not
later do that at all. The witness could test
fy properly that deceased was in his employ
as a driver of his car and drove it that night,
but that he received this particular call, and
sent him to that particular place in response
thereto, might not be admissible unless it
was shown to have had some bearing on some
How it could have been in-
fact in the case.
jurious to appellant is not shown. It is per-
haps harmless. But, if objected to on another
trial, unless in some way connected up so as
to show its materiality it should not be ad-
mitted.

[3, 4] Any witness can be impeached by showing, when not too remote, that he has been convicted or properly indicted for a felony or a misdemeanor involving moral turpitude; but no other misdemeanor convictions 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 agthe defendant's counsel did thereupon except to gravated assault and a conviction of simple the same, as a direct reference to the fact that assault in any other misdemeanor case not the defendant had not testified in the case and 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 witness Adge Robinson. Nor was evidence

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

that he had been in jail or arrested on any such charge admissible.

[5] The state proved that, on the same night deceased was killed, appellant said that he was going to whip the driver of Mr. Wilkerson's car. He did not call the name of the deceased. It was therefore permissible for the state to prove by Mr. Wilkerson that deceased was the only driver of any car he had at that time.

[6] Nor did the court err in permitting the witness Penn Wolf to testify, in substance, that appellant was wearing a hat like the one he (the witness) wore the night deceased was killed, and in then procuring his hat and exhibiting it to the jury and testifying that the hat deceased wore that night was something like his "flat top." This testimony was admissible.

Dan Earnest was convicted of giving intoxicating liquor to a minor, and he appeals. Reversed and remanded.

Geo. L. Mayfield, of Plainview, Jas. A. Stephens, of Benjamin, and G. E. Hamilton, of Matador, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. The charging part of the indictment is as follows: That Dan Earnest, on the 15th day of November, 1916, in the county of Motley and state of Texas, "did then and there unlawfully and knowingly give and cause to be given spirituous, vinous and intoxicating liquor to Hattie Williams, then and there being under the age of 21 years without the written consent of the parent or guardian or of some one standing in the place and stead of parent or -, against the

As the case is to be reversed, it is unnec-guardian of her the said essary to pass on whether the court erred in peace and dignity of the state." overruling his motion for a continuance.

[1] 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.

EARNEST v. STATE. (No. 4897.)

indictment is not sufficient. It leaves it in doubt as to whether the minority is charged as to Hattie Williams or defendant, and also as to the question of consent. This uncertainty is re-enforced by the fact that,

(Court of Criminal Appeals of Texas. Feb. 13, instead of charging that the parent or guard

1918.)

ian stood in such relation to Hattie Wil

1. INTOXICATING LIQUORS 219, 222 - IN-liams, it fails to set out her name, and leaves DICTMENT GIFT TO MINOR-UNCERTAINTY. An indictment, that defendant gave intoxicating liquor to one named, "then and there be ing under the age of 21 years without the written consent of the parent or guardian of the said against the peace," etc., was too uncertain as to who was the minor and as to consent.

2. INTOXICATING LIQUORS -KNOWLEDGE.

* * *

159(2)-MINORS

MI

In prosecution for giving intoxicating liquors to minor, the state must show, by evidence positive or circumstantial, that defendant knew that one obtaining liquor was a minor. 3. INTOXICATING LIQUORS 236(15) NORS KNOWLEDGE OF MINORITY-PROOF. In prosecution for giving intoxicating liquor to minor, mere proof that the girl obtaining liquor was only 17 was insufficient to warrant conviction, in the absence of evidence as to her size and development.

4. WITNESSES 374(1)-BIAS-MOTIVE.

In prosecution for giving intoxicating liquor to minor girl, it was error to exclude evidence that witness testifying as to giving of liquor had reasons and motives for so testifying. 5. CRIMINAL LAW 730(13) MISCONDUCT

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it blank. More care and caution should be taken in writing indictments charging statutory offenses. It could have been just as easily charged, and should have been, that if it was intended to charge appellant with giving intoxicating liquor to Hattie Williams, she, Hattie Williams was then and there under the age of 21 years. This would have been specific, and would have raised no question for decision on appeal. Upon another trial, either proper indictment or complaint and information should be drawn in the terms of the law.

[2, 3] In order to constitute this offense the evidence must show that the indicted party knowingly gave or sold intoxicants to a minor. The evidence must show, not only the minority, but knowledge of that fact on the part of the accused. This may be done by circumstances in the absence of positive evidence. The only evidence in the case bearing upon the age of Hattie Williams was that she was 17 years of age last July, which would make her in her eighteenth year at the time of the trial. Under repeated decisions of this court this evidence is not sufficient to show knowledge on the part of the accused of the minority. The cases are collated by Mr. Branch in his Annotated P. C., p. 685. Hunter v. State, 18 Tex. App. 448, 51 Am. Rep. 319; Williams v. State, 23 Tex. App. 70, 3 S. W. 661; Schurzer v. State, 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.

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