페이지 이미지
PDF
ePub

of age.

R. 624, 145 S. W. 612. . In the Henderson | requires a reversal of the judgment. Upon Case, supra, the evidence was that the party another trial the prosecuting officer will re to whom the whisky was sold was 16 years frain from using such language.

This was held not sufficient to [6] Charges were asked by appellant's show knowledge on the part of the accused. counsel and refused by the court. Among There is nothing to show the appearance of others, this charge was asked: Hattie Williams, as to her size, development, You are instructed at the request of the deetc., to place appellant upon notice of the fendant that in this character of case it is infact that she was a minor.

cumbent on the state to prove beyond a reason

able doubt that the defendant gave the intoxi[4] Evidence was also offered to show that cating liquor, or caused it to be given, if he did one of the state's witnesses had reasons and so, to the prosecuting witness, Hattie Williams, motives for testifying against appellant with knowing at the time that she was under 21 regard to the fact that he saw appellant years of age; and, unless you find from the evi

dence beyond a reasonable doubt that defendgive whisky to Hattie Williams. This was

ant gave intoxicating liquor to Hattie Williams, reserved in at least two bills of exception. and knew at the time he did so that she was a Upon another trial this testimony should be minor, you will acquit him, and so say by your

verdict." admitted. It is unnecessary to go into details. The bias and motives of witnesses are mat

This charge ought to have been given in ters which may be proved to affect the credi- view of the fact that the only evidence in bility and the weight to be given testimony the record as to the minority of the girl was of witnesses.

that she was 17 last July, and only this eri[5] There is also a bill of exceptions re

dence was introduced. The authorities cited served to remarks of the county attorney, above with reference to this matter as coland also to charges requested withdrawing

lated by Mr. Branch, we think, demand that these remarks, which were refused. One

this charge be given the jury. of the bills shows that, while the defendant

The judgment will be reversed, and the was cross-examining the witness Hattie Wil

cause remanded. liams, she was asked if there was anything done down there at that creek that night that was improper or wrong by any one of

CHUMLEY v. STATE. (No. 4904.) those boys. To this the county attorney ob- (Court of Criminal Appeals of Texas. Feb. 13, jected, and remarked:

1918.) "I object because that question is being ask- CRIMINAL LAW Om 1076(4)-APPEAL BONDSed by counsel for no other purpose under the APPROVAL BY COURT. sun except for the benefit of this defendant in Under Code Cr. Proc. 1911, art. 904, the a felony case, wherein he is indicted for rape appeal bond in a criminal case must be approvon Bessie Llobbs."

ed by the court, as well as by the sheriff; and, Prompt exception was reserved, but with will be dismissed on motion of the state.

where not so approved by the court, the appeal out avail. The county attorney also used this language in his argument:

Appeal from District Court, Sabine Coun"You should not allow men like this man to ty; W. T. Davis, Judge. ruin little girls like the Hobbs girl, who is now Henry Chumley was convicted of a felony in a rescue home.”

for unlawful sale of intoxicating liquors, He also remarked:

and he appeals. Appeal dismissed. “My God Almighty, men! are you going to E. B. Hendricks, Asst. Atty. Gen., for the turn a devil like this loose, when he was running around here ruining innocent little girls like

State. Hattie Williams, when he ought to have been at home with his wife and children"

MORROW, J. Appellant was convicted and further:

for a felony on the charge, by indictment, He is charged with rape, it is true, but I for the unlawful sale of intoxicating liquor. haven't got anything to do with that, the dis- The Assistant Attorney General, on behalf trict attorney will take care of that.”

of the state, has filed a motion to dismiss Exceptions to these remarks were prompt- the appeal because of the insufficiency of the ly reserved and special charges asked, but appeal bond. There is found in the record without avail. These remarks were im- an appeal bond in the sum of $2,000, which proper. There is no evidence in the record is approved by the sheriff. The statute, arthat appellant had committed rape upon the ticle 904, 0. C. P., requires that the bond Hobbs girl, or that he committed rape at shall be given in an amount to be fixed by all. This was a statement by the county at the court as well as the sheriff. It has been torney outside the record. It is also stated held that, unless a bond shows the approval in the bill that the county attorney referred of the court it is insullicient, and will neces. to other and different offenses that were not sitate a dismissal of the appeal. Wells V. in evidence, and which defendant had no State, 68 Tex. Cr. R. 277, 150 S. W. 1163; opportunity to defend, and that such argu- Black v. State, 68 Tex. Cr. R. 151, 151 S. W. ment and statements were not justified nor 1053. 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

made and saved the point in every particular. JOHNSON V. STATE. (No. 4900.) The court's charge, therefore, authorizing ap(Court of Criminal Appeals of Texas. Feb. 13, pellant's conviction on this count, was error. 1918.)

[2] The court's charge, to the effect that if 1. CRIMINAL LAW Cm814(5)-IsSTRUCTIONS

the jury believed the defendant is not guilty ELEMENTS OF OFFENSE-—"VAGRANT.

under either count of the indictment, is obInstruction permitting conviction of vagran- jectionable, and was properly objected to. cy, under Vernon's Ann. Pen. Code 1916, art. This charge, in the language used, rather pla606e, making it unlawful to solicit orders for in; ces the burden upon appellant of proving his toxicating liquors in prohibition territory, and Pen. Code 1911, art. 635, making one who un

innocence. lawfully solicits orders for intoxicating liquors [3] It is always permissible to impeach a a vagrant, in the absence of evidence that the witness by showing that he has been convictterritory in which accused solicited such orders ed, when not too remote, of any felony or any was prohibition territory, was erroneous.

[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 Foru.

of any other misdemeanor. The state was In prosecution for vagrancy; charge to ac- permitted, over appellant's objection, to prove quit if the jury believes accused not guilty on by him that he had before been convicted for either count is objectionable, as placing on ac. cused the burden of proving his innocence.

bootlegging. It is always understood that by 3. WITNESSES Cm345(1)—IMPEACHMENT_Oru bootlegging is meant illegally selling intoxiER OFFENSES.

cating liquor in prohibition territory. It It is always permissible to impeach a wit- might, or might not, be a felony in the given ness by showing that he has been convicted, when not too remote, of any felony or any mis: territory. Appellant's bill, objecting to this, demeanor involving moral turpitude, but it is does not show whether appellant's conviction not permissible to thus impeach any witness was for a misdemeanor or a felony, and hence by proving his prosecution or conviction of any

we cannot tell from his bill whether this other misdemeanor.

testimony is admissible or not for impeachAppeal from Hill County Court; R. T. ment. Burns, Judge.

Reversed and remanded.
Tiff Johnson was convicted of vagrancy,
and he appeals. Reversed and remanded.
Dupree & ('renshaw, of Hillsboro, for ap-

ADLER v. STATE. (No. 4905.) pellant. E. B. Hendricks, Asst. Atty. Gen., for (Court of Criminal Appeals of Texas. Feb. 20, the State.

1918.) 1. HOMICIDE mm 163(2)-EVIDENCE-CHARAC

TER OF DECEASED. PRENDERGAST, J. Appellant prosecutes

In prosecution for murder, where accused this appeal from a conviction of vagrancy. alleged deceased had insulted accused's wife,

Article 606e, 1 Vernon's Crim. Stats., makes conceding specific acts of uchastity or bad conit an offense for any person to solicit orders duct on deceased's part could have been shown,

offer to show that accused had been informed for any intoxicating liquors in any territory that deceased had caused a man and wife to where prohibition is in force. Article 635, P. separate was too indefinite. 0., prescribes that any person who unlawfully 2. HOMICIDE M300(3)-INSTRUCTIONS-SELFsolicits orders for intoxicating liquors is a

DEFENSE.

Instruction to view issue of self-defense from vagrant. The complaint and information defendant's viewpoint at the time, and that, if herein, among other things, in one count, al- it reasonably appeared to defendant that deceasleged that, on or about September 1, 1917, and ed was drawing a weapon, the shooting was justhence continuously to the day of the filing of tified, and that, if there was reasonable doubt

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 view

point. ed that prohibition was in force or ever had

3. CRIMINAL LAW Cm1091(7)-APPEAI-BILL been in Hill county, where the soliciting was OF EXCEPTIONS. alleged to have been done.

Bill reciting merely that juror had admit[1] The only law known to us which makes ted saying before he was taken as juror that

accused “had killed a good boy in another counit unlawful to solicit orders for intoxicating ty and sworn lies to get out of it” presents liquors is article 606e, stated above. There no error, since it fails to show that such fact was no testimony showing that prohibition was not known to accused before the juror was was in force in Hill county, even if this could

accepted.

4. HOMICIDE 309(3) --HOMICIDE-INSTRUChare been proven without alleging it. The

TIONS-MANSLALGIITER. court by its charge expressly authorizes an 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.

For other cases see samne topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 201 S.W.-12

Appeal from District Court, Houston Coun-, that Wellborn was making an effort or move. ty; John S. Prince, Judge.

ment to draw a weapon, and defendant believed Charley Adler was convicted of murder, believing, shot Wellborn, then defendant was

that Wellborn intended to attack him, and, so and he appeals. Affirmed.

justified, and you will acquit him ; Adams & Young, of Crockett, for appellant. have a reasonable doubt as to defendant's belief E. B. Hendricks, Asst. Atty. Gen., for the doubt in defendant's favor and acquit him."

at the time of the shooting, you will solve such State.

These charges, we think, fully submitted DAVIDSON, P. J. Appellant was convict- the issue of self-defense from the viewpoint ed of murder and allotted 99 years confine of defendant as contradistinguished from ment in the penitentiary.

the viewpoint of the jury. [1] Bill of exceptions No. 1 recites that, [3] There is another bill which recites: after the general reputation of deceased with "By Witness Deaton: I never made any rereference to his conduct with women was mark before I was taken as a juror that Adshown to be bad, appellant offered evidence ler, this defendant, had killed a good boy in to the effect that he knew by information Trinity county, and sworn lies to get out of it.

“By Earl Adams, Jr.: I heard Mr. Deaton that Wellborn had caused a separation be- say some time before he was taken as a juror tween a man and his wife two years ago, and that Adler had killed a good boy in Trinity offered to prove he had been informed of county, and, as I remember, he stated that Ad

ler had sworn lies to get out of it. Then Deaton such fact, and also offered to prove that it said he did say Adler had killed a good boy in was a fact that deceased had caused such Trinity county. separation, and that appellant had been in- "And the court then overruled defendant's formed of that fact long prior to the homi- motion for new trial, and defendant excepted, cide. This is the full bill of exceptions. The and now tenders his bill for approval.” object and purpose of this is not stated in

This is signed by the court without qualthe bill, but, if it was intended to show that ification. This bill is too indefinite to show deceased had caused this separation between the facts or exclude the idea that appellant some man and his wife, it is too indefinite.

was fully aware of all these things before The general allegation that deceased had been accepting the juror, even if Deaton had used instrumental in separating a man and his such expression. It is unnecessary to go wife, in our judgment, is too indefinite to into the motion for new trial with reference admit such proof, even conceding that spe- to any of these questions. There was a sharp cific acts of unchastity or of bad conduct in and critical contest, and the court was justithis connection could be shown. By whom fied in viewing this matter as he did in his he offered to prove it, or who the parties different rulings. were referred to, is not given; in other

[4] There is a criticism of the court's words, the bill is too indefinite to require charge with reference to manslaughter. It consideration, even if it be conceded that comes too late, but, if it had been timely such specific acts could be shown.

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, thereit 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 was given by the court, to this effect:

Tex. Cr. R. 268, 87 S. W. 1036, and Young v. "If at the time of the shooting by defendant State, 69 S. W. 155. of Wellborn it reasonably appeared to the de

Finding no reversible error in the record, fendant, viewed from his standpoint at the time, the judgment is affirmed.

Denman v. State, 77 Tex. Cr. R. 256, 178 S., O'BRIEN v. STATE. (No. 4895.) W. 332; Williams v. State, 53 Tex, Cr. R. 399, (Court of Criminal Appeals of Texas. Feb. 13, 110 S. W. 63; Tracey v. State, 42 Tex. Cr. R. 1918.)

495, 61 S. W. 127; Stone v. State, 22 Tex. App. CRIMINAL LAW M507(1) -- EVIDENCE—"AC- 185, 2 S. W. 585; Bush v. State, 68 Tex, Cr. COMPLICE"'-CORROBORATION.

R. 290, 151 S. W. 554. Within the rule as to corroboration, one living in a house, by procurance of the proprie

Appellant also suggests that the evidence tress, for immoral purposes, is an “accomplice" is not sufficient, especially with reference to of the proprietress charged with keeping a dis- showing that appellant was only the lessee orderly house.

or tenant of the house. With the exception (Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Accom- in the most inferential way, the evidence is plice.]

silent as to her relations to the house. There Appeal from Wichita County Court; Har- is evidence that she kept a boarding house vey Harris, Judge.

and had boarders. Outside of this there is Ethel O'Brien was convicted, and appeals. no testimony that shows she was the lessee Reversed and remanded.

or tenant. There was no evidence offered to

show her relation to it outside of the facts T. F. Hunter, of Wichita Falls, for appel- stated. Her relations to that house should lant. E. B. Hendricks, Asst. Atty. Gen., for be shown. If she was the lessee or tenant, the State.

the fact, it occurs to us, might be easily obDAVIDSON, P. J. Appellant was convict- tained. ed of keeping a disorderly house. The state's

The judgment is reversed, and the cause case depends upon the evidence of the wit- remanded. ness Maude Davis and evidence showing the general reputation of the house. In sub

COVINGTON V. STATE. (No. 4490.) stance, she stated she was at defendant's house, and had been for two days and three (Court of Criminal Appeals of Texas. Feb. 13,

1918.) nights when appellant was arrested; that

1. CRIMINAL LAW 595(1) ASSAULT TO 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 reve

were friendly before a shooting, and immediatenues, and at that time appellant had two oth-fly after drove home together in a friendly man

ner, it was error to refuse a continuance for er women and five men boarders. At the time purpose of getting testimony of the supposed asshe went to this house she says:

saulted person to the effect that he did not think "I had an understanding with her [appellant) defendant was shooting at him and testimony and she with me that I was to prostitute myself of what was said between the two immediately there in that house; that I was to receive men

after the shooting. and to charge them for their relations, and 2. CRIMINAL LAW E363–RES GESTÆ-CONwas to divide the money with Mrs. O'Brien." VERSATION AFTER SHOOTING. She collected $6 from three men while defendant denied he was shooting at the alleg

In prosecution for assault to murder, where there, and on the third morning she had trou- ed assaulted party, what was said immediately ble with appellant, who asked her for half after the shooting between the two was admisof the money she had received, and she re-sible as a part of the res gestæ. fused to give it; that appellant had agreed Appeal from District Court, Wise County ; to give her $2.50 a week for work she did F. O, McKinsey, Judge. around the house, and when appellant de Will Covington was convicted of assault to manded this a fight started. She testified murder, and he appeals. Reversed and reto other facts showing there were other men manded. and women there, three girls besides herself.

Ratliff & Spencer and F. J. Ford, all of Further details of her testimony are deemed Decatur, for appellant. E. B. Hendricks, unnecessary. All of her testimony was em- Asst. Atty. Gen., for the State. phatically denied by such parties as she named and could be used on the trial.

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 storehouse in the town of Decatur appellant the charge. Appellant complied strictly with shot at Harry Beard with intent to kill him. the law in objecting to the court's charge, The defendant's theory was that he did not and in presenting his special requested in shoot at him, and that, while his pistol fired structions. We are of opinion the court was twice, the first shot was accidental, and the

Such charge ought to have been other shot was fired while he was holding given. The facts called for it, and appellant the pistol in the air. There is a good deal brought herself strictly within the law with of testimony with reference to the condition reference to presenting this question. Dooms of things in the store. Photographs were V. State, 77 Tex. Cr. R. 206, 178 S. W. 334; 1 taken and introduced showing where a bullet

in error.

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

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 , immediately after the shots were fired at were friends; that he had nothing against the grocery store he met Harry Beard, who him, and there was no purpose of shooting sent him to defendant to inform him as soon Beard or injuring him. There was also an as he made bond to come and go home, and issue, if he did shoot at Beard, or was at- thereafter defendant and said witnesses retempting to shoot at him, whether it was an turned home together. assault to murder or aggravated assault. The above testimony was admitted as beBoth issues were submitted to the jury. | ing true. Before taking up the excerpts There was another matter raised by the evi- from the motion which were not permitted dence, it occurs to the writer, wbich is not to go to the jury, it may be stated that the mentioned in the record, that is, the display court did not in his charge instruct the jury of a deadly weapon with intent to aların. that this admitted testimony would be taken That, however, is not suggested by appellant, as true. Appellant requested an instruction and no charge was asked or given in regard to that effect, which the court did not give. to the matter, and the question seems not to It is claimed by the court that verbally he have been discussed in the trial of the case. did instruct the jury to that effect at the

Appellant sought a continuance for the tes- time. timony of Harry and Ted Beard. To avoid

Excerpts of testimony in the motion which this the state admitted that, if these wit

were not permitted to go to the jury are nesses were present, they would testify as thus stated: set out in the motion, except as to certain

"That at said time (at the time of the shootportions of the proposed testimony marked ing) there was no trouble existing between him, with parentheses, and it is stated that the the said Harry Beard, and the defendant, and state's admission did not apply to these that there was no ill feeling between them, and clauses set out in the application for con

that nothing had occurred which would cause

any ill feeling or malice between them, and that tinuance. Such matters as the state agreed said witness Beard knew of no reason why demight be used were read, to the effect that, fendant should make an assault on hiin; that if Harry Beard was present, he would tes- prior thereto there had been no quarrel or troutify he was in the Cash Grocery Store at the ble of any kind between them; that there ex.

isted at the time the assault is charged nor betime and place mentioned; that they had fore no grudge or difference between defendant been together practically the whole evening and said witness Beard, and said Harry Beard on the day of the difficulty; that appellant will further testify that when the shots were was subsequently arrested, and made bond sault that, so far as he knows, they were not

fired by defendant constituting the alleged aswithin about one-half hour after the shoot- fired at him, and that nothing existed between ing, and immediately after making bond de- defendant and the witness to cause defendant to fendant and Harry and Ted Beard left town make an assault upon him; that Beard will tesriding in the same buggy, which buggy be- tify that he and defendant are good friends,

have always been so, and no malice now exists longed to Harry and Ted Beard, and return- or has heretofore existed between them; that in ed to their respective homes east of Decatur, said conversations the defendant at all times and at that time there was no ill feeling be- assured the witness Harry Beard that he was tween Harry Beard and appellant; that Ted not shooting at him, and that said witness Har

ry Beard assured defendant that he knew that Beard would testify that defendant gave he (defendant) had no malice against him and bond on the day the assault is alleged to was not shooting at him (said Beard).” (This have been committed within an hour there- last extract referred to the shooting.)

"That the said Ted Beard will further testiafter, and that he, in company with Harry fy that he knows of his own knowledge that de. Beard and defendant, in the same buggy be- fendant and said Harry Beard

gooi 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 defend

fired 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 to have occurred, and that during the injury plied, 'I know that,' and immediately without

shooting at you,' to which the witness Beard reto 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 lie

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 defendanı | and that said witness Harry Beard will testify

were

« 이전계속 »