R. 624, 145 S. W. 612.. In the Henderson [4] Evidence was also offered to show that one of the state's witnesses had reasons and motives for testifying against appellant with regard to the fact that he saw appellant give whisky to Hattie Williams. This was reserved in at least two bills of exception. Upon another trial this testimony should be admitted. It is unnecessary to go into details. The bias and motives of witnesses are matters which may be proved to affect the credibility and the weight to be given testimony of witnesses. [5] There is also a bill of exceptions reserved to remarks of the county attorney, and also to charges requested withdrawing these remarks, which were refused. One of the bills shows that, while the defendant was cross-examining the witness Hattie Williams, she was asked if there was anything done down there at that creek that night that was improper or wrong by any one of those boys. To this the county attorney objected, and remarked: "I object because that question is being asked by counsel for no other purpose under the sun except for the benefit of this defendant in a felony case, wherein he is indicted for rape on Bessie Hobbs." Prompt exception was reserved, but without avail. The county attorney also used this language in his argument: "You should not allow men like this man to ruin little girls like the Hobbs girl, who is now in a rescue home." He also remarked: "My God Almighty, men! are you going to turn a devil like this loose, when he was running around here ruining innocent little girls like Hattie Williams, when he ought to have been at home with his wife and children" -and further: "He is charged with rape, it is true, but I haven't got anything to do with that, the district attorney will take care of that." requires a reversal of the judgment. Upon another trial the prosecuting officer will refrain from using such language. [6] Charges were asked by appellant's counsel and refused by the court. Among others, this charge was asked: "You are instructed at the request of the defendant that in this character of case it is incumbent on the state to prove beyond a reasonable doubt that the defendant gave the intoxicating liquor, or caused it to be given, if he did so, to the prosecuting witness, Hattie Williams, knowing at the time that she was under 21 dence beyond a reasonable doubt that defendyears of age; and, unless you find from the eviant gave intoxicating liquor to Hattie Williams, and knew at the time he did so that she was a minor, you will acquit him, and so say by your verdict." This charge ought to have been given in view of the fact that the only evidence in the record as to the minority of the girl was that she was 17 last July, and only this evidence was introduced. The authorities cited above with reference to this matter as collated by Mr. Branch, we think, demand that this charge be given the jury. The judgment will be reversed, and the cause remanded. CHUMLEY v. STATE. (No. 4904.) CRIMINAL LAW 1076(4)—APPEAL BONDS- Under Code Cr. Proc. 1911, art. 904, the appeal bond in a criminal case must be approved by the court, as well as by the sheriff; and, will be dismissed on motion of the state. where not so approved by the court, the appeal Appeal from District Court, Sabine County; W. T. Davis, Judge. Henry Chumley was convicted of a felony for unlawful sale of intoxicating liquors, and he appeals. Appeal dismissed. E. B. Hendricks, Asst. Atty. Gen., for the State. convicted MORROW, J. Appellant was for a felony on the charge, by indictment, for the unlawful sale of intoxicating liquor. The Assistant Attorney General, on behalf of the state, has filed a motion to dismiss the appeal because of the insufficiency of the appeal bond. There is found in the record an appeal bond in the sum of $2,000, which is approved by the sheriff. The statute, article 904, C. C. P., requires that the bond shall be given in an amount to be fixed by the court as well as the sheriff. It has been held that, unless a bond shows the approval of the court it is insuflicient, and will necessitate a dismissal of the appeal. Wells v. State, 68 Tex. Cr. R. 277, 150 S. W. 1163; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053. Exceptions to these remarks were promptly reserved and special charges asked, but without avail. These remarks were improper. There is no evidence in the record that appellant had committed rape upon the Hobbs girl, or that he committed rape at all. This was a statement by the county attorney outside the record. It is also stated in the bill that the county attorney referred to other and different offenses that were not in evidence, and which defendant had no opportunity to defend, and that such argument and statements were not justified nor warranted by any evidence in the record. In view of the record and the authorities, This was error, and of such a nature that it the motion to dismiss is sustained. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes JOHNSON v. STATE. (No. 4900.) (Court of Criminal Appeals of Texas. Feb. 13, 1918.) 1. CRIMINAL LAW 814(5)-INSTRUCTIONSELEMENTS OF OFFENSE "VAGRANT." Instruction permitting conviction of vagrancy, under Vernon's Ann. Pen. Code 1916, art. 606e, making it unlawful to solicit orders for intoxicating liquors in prohibition territory, and Pen. Code 1911, art. 635, making one who unlawfully solicits orders for intoxicating liquors a vagrant, in the absence of evidence that the territory in which accused solicited such orders was prohibition territory, was erroneous. [3] It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any [Ed. Note. For other definitions, see Words misdemeanor involving moral turpitude, but and Phrases, First and Second Series, Vagrant.] it is not permissible to thus impeach any wit2. CRIMINAL LAW ~~778 (5)—INSTRUCTIONS-ness by proving his prosecution or conviction FORM. of any other misdemeanor. The state was permitted, over appellant's objection, to prove by him that he had before been convicted for bootlegging. It is always understood that by bootlegging is meant illegally selling intoxicating liquor in prohibition territory. It might, or might not, be a felony in the given territory. Appellant's bill, objecting to this, does not show whether appellant's conviction was for a misdemeanor or a felony, and hence we cannot tell from his bill whether this testimony is admissible or not for impeach In prosecution for vagrancy, charge to acquit if the jury believes accused not guilty on either count is objectionable, as placing on ac cused the burden of proving his innocence. 3. WITNESSES 345(1)—IMPEACHMENT-OTH ER OFFENSES. It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any misdemeanor involving moral turpitude, but it is not permissible to thus impeach any witness by proving his prosecution or conviction of any other misdemeanor. Appeal from Hill County Court; R. T. ment. Burns, Judge. Tiff Johnson was convicted of vagrancy, and he appeals. Reversed and remanded. Dupree & Crenshaw, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. Reversed and remanded. ADLER v. STATE. (No. 4905.) (Court of Criminal Appeals of Texas. Feb. 20, 1918.) 1. HOMICIDE 163(2)-EVIDENCE-CHARAC TER OF DECEASED. In prosecution for murder, where accused alleged deceased had insulted accused's wife, conceding specific acts of unchastity or bad conoffer to show that accused had been informed duct on deceased's part could have been shown, that deceased had caused a man and wife to separate was too indefinite. 2. HOMICIDE DEFENSE. 300(3)-INSTRUCTIONS-SELF Instruction to view issue of self-defense from PRENDERGAST, J. Appellant prosecutes this appeal from a conviction of vagrancy. Article 606e, 1 Vernon's Crim. Stats., makes it an offense for any person to solicit orders for any intoxicating liquors in any territory where prohibition is in force. Article 635, P. C., prescribes that any person who unlawfully solicits orders for intoxicating liquors is a vagrant. The complaint and information herein, among other things, in one count, alleged that, on or about September 1, 1917, and thence continuously to the day of the filing of as to defendant's belief at the time, he should the information, which was on September be acquitted, sufficiently presented self-defense, 13th, appellant, "did then and there unlaw-in spite of previous instruction which was obfully solicit orders for intoxicating liquors." jectionable as leaving appearances at time of Neither the complaint nor information alleg-shooting to jury's and not defendant's viewed that prohibition was in force or ever had 3. CRIMINAL LAW been in Hill county, where the soliciting was alleged to have been done. defendant's viewpoint at the time, and that, if it reasonably appeared to defendant that deceas ed was drawing a weapon, the shooting was justified, and that, if there was reasonable doubt point. OF EXCEPTIONS. 1091(7)-APPEAL-BILL Bill reciting merely that juror had admitted saying before he was taken as juror that accused "had killed a good boy in another county and sworn lies to get out of it" presents no error, since it fails to show that such fact was not known to accused before the juror was accepted. 4. HOMICIDE 309(3) HOMICIDE-INSTRUC [1] The only law known to us which makes it unlawful to solicit orders for intoxicating liquors is article 606e, stated above. There was no testimony showing that prohibition was in force in Hill county, even if this could have been proven without alleging it. The court by its charge expressly authorizes ap- Where accused and deceased met in the pellant's conviction for unlawfully soliciting forenoon and had a difficulty about deceased's orders for intoxicating liquors, without any having sent accused's wife an insulting letter, mere fact that accused was not then prepared evidence that prohibition was in force. Ap-to kill deceased, but did kill him on the next pellant objected to this in various ways, and meeting, did not justify charge on manslaughter. TIONS-MANSLAUGHTER. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from District Court, Houston County; John S. Prince, Judge. Charley Adler was convicted of murder, and he appeals. Affirmed. Adams & Young, of Crockett, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of murder and allotted 99 years confinement in the penitentiary. [1] Bill of exceptions No. 1 recites that, after the general reputation of deceased with reference to his conduct with women was shown to be bad, appellant offered evidence to the effect that he knew by information that Wellborn had caused a separation between a man and his wife two years ago, and offered to prove he had been informed of such fact, and also offered to prove that it was a fact that deceased had caused such separation, and that appellant had been informed of that fact long prior to the homicide. This is the full bill of exceptions. The object and purpose of this is not stated in the bill, but, if it was intended to show that deceased had caused this separation between some man and his wife, it is too indefinite. The general allegation that deceased had been instrumental in separating a man and his wife, in our judgment, is too indefinite to admit such proof, even conceding that specific acts of unchastity or of bad conduct in this connection could be shown. By whom he offered to prove it, or who the parties were referred to, is not given; in other words, the bill is too indefinite to require consideration, even if it be conceded that such specific acts could be shown. that Wellborn was making an effort or movement to draw a weapon, and defendant believed that Wellborn intended to attack him, and, so believing, shot Wellborn, then defendant was justified, and you will acquit him; or if you have a reasonable doubt as to defendant's belief at the time of the shooting, you will solve such doubt in defendant's favor and acquit him." These charges, we think, fully submitted the issue of self-defense from the viewpoint of defendant as contradistinguished from the viewpoint of the jury. [3] There is another bill which recites: "By Witness Deaton: I never made any remark before I was taken as a juror that Adler, this defendant, had killed a good boy in Trinity county, and sworn lies to get out of it. "By Earl Adams, Jr.: I heard Mr. Deaton say some time before he was taken as a juror that Adler had killed a good boy in Trinity county, and, as I remember, he stated that Adsaid he did say Adler had killed a good boy in ler had sworn lies to get out of it. Then Deaton Trinity county. "And the court then overruled defendant's motion for new trial, and defendant excepted, and now tenders his bill tor approval." This is signed by the court without qualification. This bill is too indefinite to show the facts or exclude the idea that appellant was fully aware of all these things before accepting the juror, even if Deaton had used such expression. It is unnecessary to go into the motion for new trial with reference to any of these questions. There was a sharp and critical contest, and the court was justified in viewing this matter as he did in his different rulings. [4] There is a criticism of the court's charge with reference to manslaughter. It comes too late, but, if it had been timely presented, it shows no error. The facts show [2] Another bill recites that appellant, be- in this connection that appellant and Wellfore the charge was read to the jury, excepted born had had a difficulty in the morning to that portion of it which charges self-de- about alleged misconduct by Wellborn sendfense, because it shifted the burden of proof ing appellant's wife an insulting letter. They from the state to the defendant, did not give met and had a difficulty about it. Late that the defendant the benefit of the reasonable evening they met again, and the killing ocdoubt in his defenses, but required him to curred. It is contended that the court should prove such defense beyond a reasonable have charged that this second meeting would doubt. In a general way the court's charge justify a charge on manslaughter. Such is in this connection was subject to criticism not the statute, nor the law. This was not in that it instructed the jury, if they should the first meeting. The previous meeting believe that at the time of the killing de- might be taken into consideration, but it ceased had made a demonstration as if to would not afford an adequate cause because draw a weapon, etc., appellant would be en- the first meeting had occurred and a difficulty titled to a verdict of not guilty. While the had ensued. The parties separated; appelbill is rather indefinite, yet if it was intended lant's contention being that, as he was not to criticize this part of the charge because in position to kill on the first meeting, there it left it to the jury to determine instead of fore he had a right to kill him on the second the defendant from his viewpoint, then the meeting. This does not seem to be in accord charge was not correct, but that portion of with the statutes or decisions. This matter the charge is immediately followed by this: underwent investigation in Pitts v. State, 29 "In passing on defendant's right of self-de-Tex. App. 374, 16 S. W. 189. It was there fense, the jury must view the facts from defend-held contrary to appellant's contention. This ant's standpoint at the time, and from no other standpoint." was followed in Gillespie v. State, 53 Tex. Appellant asked a special charge which Cr. R. 168, 109 S. W. 158, Ricks v. State, 48 Tex. Cr. R. 268, 87 S. W. 1036, and Young v. was given by the court, to this effect: "If at the time of the shooting by defendant State, 69 S. W. 155. of Wellborn it reasonably appeared to the defendant, viewed from his standpoint at the time, Finding no reversible error in the record, the judgment is affirmed. O'BRIEN V. STATE. (No. 4895.) Denman v. State, 77 Tex. Cr. R. 256, 178 S.. (Court of Criminal Appeals of Texas. Feb. 13, 110 S. W. 63; Tracey v. State, 42 Tex. Cr. R. 495, 61 S. W. 127; Stone v. State, 22 Tex. App. 185, 2 S. W. 585; Bush v. State, 68 Tex. Cr. R. 290, 151 S. W. 554. 1918.) CRIMINAL LAW 507(1) -- EVIDENCE-"AcCOMPLICE"-CORROBORATION. Within the rule as to corroboration, one living in a house, by procurance of the proprietress, for immoral purposes, is an "accomplice" of the proprietress charged with keeping a disorderly house. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accomplice.] Appeal from Wichita County Court; Harvey Harris, Judge. Ethel O'Brien was convicted, and appeals. Reversed and remanded. T. F. Hunter, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. Appellant also suggests that the evidence is not sufficient, especially with reference to showing that appellant was only the lessee or tenant of the house. With the exception in the most inferential way, the evidence is silent as to her relations to the house. There is evidence that she kept a boarding house and had boarders. Outside of this there is no testimony that shows she was the lessee or tenant. There was no evidence offered to show her relation to it outside of the facts stated. Her relations to that house should be shown. If she was the lessee or tenant, the fact, it occurs to us, might be easily obtained. The judgment is reversed, and the cause remanded. DAVIDSON, P. J. Appellant was convicted of keeping a disorderly house. The state's case depends upon the evidence of the witness Maude Davis and evidence showing the general reputation of the house. In substance, she stated she was at defendant's house, and had been for two days and three nights when appellant was arrested; that 1. CRIMINAL LAW 595(1) she had an understanding with appellant MURDER-CONTINUANCE-EVIDENCE. when she went there that she was to stay Where defendant and the assaulted person and receive men for money and divide revewere friendly before a shooting, and immediatenues, and at that time appellant had two oth-ly after drove home together in a friendly man er women and five men boarders. At the time she went to this house she says: "I had an understanding with her [appellant] and she with me that I was to prostitute myself there in that house; that I was to receive men and to charge them for their relations, and was to divide the money with Mrs. O'Brien." She collected $6 from three men while there, and on the third morning she had trouble with appellant, who asked her for half of the money she had received, and she refused to give it; that appellant had agreed to give her $2.50 a week for work she did around the house, and when appellant demanded this a fight started. She testified to other facts showing there were other men and women there, three girls besides herself. Further details of her testimony are deemed unnecessary. All of her testimony was emphatically denied by such parties as she named and could be used on the trial. COVINGTON v. STATE. (No. 4490.) (Court of Criminal Appeals of Texas. Feb. 13, 1918.) ASSAULT TO ner, it was error to refuse a continuance for purpose of getting testimony of the supposed assaulted person to the effect that he did not think defendant was shooting at him and testimony of what was said between the two immediately after the shooting. 2. CRIMINAL LAW 363-RES GESTÆ-CONVERSATION AFTER SHOOTING. defendant denied he was shooting at the allegIn prosecution for assault to murder, where ed assaulted party, what was said immediately after the shooting between the two was admissible as a part of the res gestæ. Appeal from District Court, Wise County; F. O. McKinsey, Judge. Will Covington was convicted of assault to murder, and he appeals. Reversed and remanded. Ratliff & Spencer and F. J. Ford, all of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convictA question suggested for reversal is that ed of assault to murder and allotted two the court failed to charge on accomplice tes-years' confinement in the penitentiary. timony, and refused to give special request- The state's theory was that in a certain ed instructions submitting that question in the charge. Appellant complied strictly with the law in objecting to the court's charge, and in presenting his special requested instructions. We are of opinion the court was in error. Such charge ought to have been given. The facts called for it, and appellant brought herself strictly within the law with reference to presenting this question. Dooms v. State, 77 Tex. Cr. R. 206, 178 S. W. 334; storehouse in the town of Decatur appellant shot at Harry Beard with intent to kill him. The defendant's theory was that he did not shoot at him, and that, while his pistol fired twice, the first shot was accidental, and the other shot was fired while he was holding the pistol in the air. There is a good deal of testimony with reference to the condition of things in the store. Photographs were taken and introduced showing where a bullet immediately after the shots were fired at the grocery store he met Harry Beard, who sent him to defendant to inform him as soon as he made bond to come and go home, and thereafter defendant and said witnesses returned home together. The above testimony was admitted as being true. Before taking up the excerpts from the motion which were not permitted to go to the jury, it may be stated that the court did not in his charge instruct the jury that this admitted testimony would be taken as true. Appellant requested an instruction to that effect, which the court did not give. It is claimed by the court that verbally he did instruct the jury to that effect at the time. Excerpts of testimony in the motion which were not permitted to go to the jury are thus stated: struck supposed to have been shot at Beard., made bond and they returned home with Appellant denied shooting at Beard, and tes- him; and that Ted Beard will testify that tified to the fact that he did not; that they were friends; that he had nothing against him, and there was no purpose of shooting Beard or injuring him. There was also an issue, if he did shoot at Beard, or was attempting to shoot at him, whether it was an assault to murder or aggravated assault. Both issues were submitted to the jury. There was another matter raised by the evidence, it occurs to the writer, which is not mentioned in the record, that is, the display of a deadly weapon with intent to alarm. That, however, is not suggested by appellant, and no charge was asked or given in regard to the matter, and the question seems not to have been discussed in the trial of the case. Appellant sought a continuance for the testimony of Harry and Ted Beard. To avoid this the state admitted that, if these witnesses were present, they would testify as set out in the motion, except as to certain portions of the proposed testimony marked with parentheses, and it is stated that the state's admission did not apply to these clauses set out in the application for continuance. Such matters as the state agreed might be used were read, to the effect that, if Harry Beard was present, he would testify he was in the Cash Grocery Store at the time and place mentioned; that they had been together practically the whole evening on the day of the difficulty; that appellant was subsequently arrested, and made bond within about one-half hour after the shooting, and immediately after making bond defendant and Harry and Ted Beard left town riding in the same buggy, which buggy belonged to Harry and Ted Beard, and returned to their respective homes east of Decatur, and at that time there was no ill feeling between Harry Beard and appellant; that Ted Beard would testify that defendant gave bond on the day the assault is alleged to have been committed within an hour thereafter, and that he, in company with Harry fy that he knows of his own knowledge that deBeard and defendant, in the same buggy be- fendant and said Harry Beard were good longing to the Beards, left town and went to friends; that he had been in company with them their homes east of Decatur about four miles, immediately before the assault is charged; and and that defendant and Harry Beard were ing between them, and thereafter nothing occur that there was no ill feeling or bad feeling existfriendly all the time, and there was nothing red to separate the friendship between defendin their conduct or conversation showing any ant and said Harry Beard; said witness Harry ill feeling between them; that both of the Beard will testify that after the shots were Beards would testify that a short while be- assault is predicated, when he first met defendfired in the Cash Grocery Store upon which this fore the assault appellant was injured in an ant thereafter, which was as soon as defendant automobile wreck, and defendant was on executed a bond to the officers, the first thing decrutches at the time the assault is alleged fendant said was, "That was a lie about me shooting at you,' to which the witness Beard reto have occurred, and that during the injury plied, I know that,' and immediately without to defendant Harry Beard attended defend- further conversation they went to the buggy, got ant, sat up with him at night, and assisted in same, and drove home together; that said in looking after his affairs; that Harry Harry Beard will testify, if present, that imBeard would also testify further that immediately after the shots were fired, while he was still in the Cash Grocery Store, and while mediately after the shots were fired he went defendant was in there before an arrest was to Sellar's store and met Ted Beard, and made of defendant, and while the defendant was told Ted Beard to go tell defendant to come standing where the shots were fired, that he, the said Harry Beard, walked up to defendant and on and go home as soon as he made bond; asked him, 'Bill, what was that shooting about,' that he waited at said store until defendant and that said witness Harry Beard will testify "That at said time (at the time of the shooting) there was no trouble existing between him, the said Harry Beard, and the defendant, and that there was no ill feeling between them, and that nothing had occurred which would cause said witness Beard knew of no reason why deany ill feeling or malice between them, and that fendant should make an assault on him; that prior thereto there had been no quarrel or trouble of any kind between them; that there existed at the time the assault is charged nor before no grudge or difference between defendant and said witness Beard, and said Harry Beard will further testify that when the shots were sault that, so far as he knows, they were not fired by defendant constituting the alleged asfired at him, and that nothing existed between defendant and the witness to cause defendant to make an assault upon him; that Beard will teshave always been so, and no malice now exists tify that he and defendant are good friends, or has heretofore existed between them; that in said conversations the defendant at all times assured the witness Harry Beard that he was not shooting at him, and that said witness Harry Beard assured defendant that he knew that he (defendant) had no malice against him and was not shooting at him (said Beard)." (This last extract referred to the shooting.) "That the said Ted Beard will further testi |