at that time he did not think or believe and does not now think or believe that said defendant was shooting at him, the said Harry Beard; that all of said testimony is material to defendant's defense," etc.

[1, 2] These excerpts are set out in the continuance together with the testimony admitted as being the testimony of the two Beards. We are of opinion this testimony was material, and was germane and proper to have gone to the jury as to the existing feeling between the parties at the time. They had been friends, and no difficulty had occurred and nothing to show, so far as this application is concerned and the statements of the parties, that there was any ill feeling between them at the time the shots were fired. If Harry Beard was in the store at the time the shots were fired, and the state's theory was that one of them was fired at him, he would certainly have known whether defendant was shooting at him, and ought to be able to tell some reason why he was so shooting. And certainly it was legitimate testimony for the defendant to show, immediately after the shooting and while still in the store where it occurred, what occurred between them with reference to the shooting, and the conversations that occurred between them. It was clearly res gestæ, as it was immediately after the shooting and almost in connection with it. The court says this testimony, if testified as stated, would not probably be true. With the testimony admitted by the state to be true, which went before the jury, we are of opinion the rejected testimony was material. It bore upon the same question, and was explanatory of it, and especially as to their feeling toward each other. Appellant's theory was that he did not shoot at him, that he had no reason for shooting at him, and no cause for it, and that he did not in fact shoot at him. Taking these matters together, the fact they were friendly up to the time of the shooting and immediately after the shooting, within a few minutes, which seems not to be denied, and that appellant got in the buggy with the two Beards, one of them who was the alleged assaulted party, and drove out to their homes in the country east of town, we are of opinion that the excluded testimony, especially in the light of the admitted testimony, was material, germane, and explanatory, and not only so, but it was evidence of the parties themselves to the supposed difficulty, showing that there was no trouble between them, and that Beard himself did not understand he was being shot at.

There are quite a number of bills of exception which are hardly sufficiently stated to require reviewing. Upon another trial these matters may not occur. If they do, the bills of exception will be more explicit. We are of opinion appellant was entitled to his continuance.

posed to be friendly to the state, their absence was not imputed to appellant, nor sought to be.

The judgment will be reversed, and the cause remanded.

CORDILL v. STATE. (No. 4876.) (Court of Criminal Appeals of Texas. Feb. 20, 1918.)

ADULTERY 14-EVIDENCE-SUFFICIENCY"HABITUAL.

Evidence of the paramour and accomplice as to nine specific acts of sexual intercourse with her between the 15th of August and the 25th day of December at intervals of from 1 to 2 weeks, and in one instance an interval of 22 or 3 months, only three of which were corroborated, without proof of attending circumstances indicating that the intercourse was habitual, held insufficient to sustain a conviction of adultery by habitual carnal inter course without living together; "habitual"

Appeal from Howard County Court; S. A. Penix, Judge.

J. S. Cordill was convicted of adultery by habitual carnal intercourse without living together, and he appeals. Reversed.

H. R. Debenport and Jno. B. Littler, both of Big Springs, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Appellant was convicted of adultery by habitual carnal intercourse without living together.

The paramour testified to nine specific acts of sexual intercourse occurring between the 15th of August and the 25th day of December, 1916, at intervals varying from 1 to 2 weeks, except that in one instance there was an interval of some 22 or 3 months. The testimony of the paramour is treated as accomplice testimony, requiring corroboration. Article 801, C. C. P.; Jackson v. State, 51 Tex. Cr. R. 220, 101 S. W. 807; Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95. To supply this the state used the testimony of the sister of the paramour, who testified to her presence on three occasions when carnal intercourse took place. Mr. Branch, in section 1053 of his Annotated P. C., collates the Texas cases in the following note:

"Proof of an occasional act of carnal intercourse is not sufficient to show 'habitual carnal intercourse. Cohen v. State, 11 Tex. Cr. App. 337 (circumstances). Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113 (once a month for three months). Collins v. State, 46 Tex. Cr. R. 550, 80 S. W. 372 (five times a month). Boswell v. State, 48 Tex. Cr. R. 48, 85 S. W. 1077 [122 Am. St. Rep. 731] (six times during summer and fall). Taylor v. State, 48 Tex. Cr. R. 216, 87 S. W. 148 (four times a week apart). Quinn v. State, 51 Tex. Cr. R. 155, 101 S. W. Curlee v. State, 98 S. W. 840 (four times). 248 (two acts and familiarity). Hutchinson v. State, 108 S. W. 378 (three times). Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95 (six times two weeks apart)."

In Hilton v. State, 41 Tex. Cr. R. 193, 53 S. These were state's witnesses, W. 113, the definition of "habitual" is quot

and if Harry Beard was shot at, or sup-ed as follows:

"Formed or acquired by or resulting from S. P. Sadler, of Gatesville, for appellant. habit, frequent use, or custom; formed by re- E. B. Hendricks, Asst. Atty. Gen., for the peated impressions." State.

(Court of Criminal Appeals of Texas. Feb. 20, and his wife separated. She went to her

Appeal from Coryell County Court; H. ed to the back one. It was claimed that Miss E. Bell, Judge.

Grundy Green was convicted of adultery and appeals. Reversed and remanded.

Barnhard slept in the front room with the youngest little girl, and appellant, when it was not too cold, slept in the cage with his

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other little girl; that when it got too cold for this he would move his bed into the room adjoining the other, and he and his child slept there. Miss Barnhard moved to appellant's some time in March, 1917, and has Fontinuously lived there with him and his two said children since then. In July, 1917, the grand jury indicted him as stated.

There are a great number of bills of exceptions. It will be unnecessary to pass upon each of them. The most material ones will be passed upon.

court by charge withdrew said matters, and told the jury not to consider them.

Under the recent rulings of this court, this shows reversible error. Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 146, and cases there cited. (This writer did not, and does not, concur in the extent of such holding.)

Appellant has some other bills to the language used in argument by the attorneys for the state which is claimed to be inflammatory and hurtful. Of course, attorneys should be careful and stay within the record, discuss the testimony, the legitimate inferences to be drawn therefrom, and such comment on the witnesses as their testimony, and the circumstances justify, but should not use otherwise inflammatory language.

Some complaint was made to the court's charge on circumstantial evidence and of the refusal of the court to give that on the subject asked by appellant. We have examined the court's charge, and that of appellant refused. There is no substantial difference pointed out between the two, and we think that of the court was sufficient. It would in the standard form of such charges. have been proper to have given such charge,

There was no error in the court admitting in evidence the letter of appellant to his daughter Ruby, who was with appellant's wife, dated April 2, 1917, at least that part relating to the criticisms of him. It might be well contended that the balance of this letter was in appellant's favor, and not against him, not harmful to him.

[1] Appellant has several bills on the same subject. These show that the state had sworn and placed on the stand appellant's wife, who testified that she was his wife, but was then living in Comanche county with her father; that she had lived with her husband at a certain place in Coryell county; that they separated about February 12th; that she took with her when they separated, and thereafter kept, two of their children; and that appellant himself kept the other three. She testified to the ages and names of their several children, and that after they had separated she had borne another child by appellant. Up to this time appellant made no objection to his wife being sworn and testifying what she did. Thereupon the county attorney stated to the court in the hearing and before the jury that the state could not use her as a witness if the appellant objected, and he tendered her to the defendant as a witness for both sides, and that, if he desired to object to any further questions to her of the material facts because she was not a competent witness, the state did not insist on asking her further questions. Thereupon the appellant objected to the action of the court in permitting the state to use her as a witness so far as it had, and excepted to the said statement of the county attorney because he knew that she was not a competent witness against him, and it was improper to use or offer her as a witness under the circumstances, and that the action of the county attorney under the sanction of the court so far was highly prejudicial and harmful to him. During the argument of the case before the jury an attorney privately prosecuting referred to the testimony of his wife and to the fact that she was tendered as a witness, and that appellant would not let | (Court of Criminal Appeals of Texas. Feb. 20, her testify; that she had been in attendance on the court all day, and he dared not put her on the stand as a witness. Other statements in argument by this attorney in this connection were also objected to. The county attorney in his closing argument again referred to putting defendant's wife on the stand as a witness, and stated that he would not comment thereon, but said that all he was going to say was that she was here, and the 2. PHYSICIANS AND SURGEONS 6(11)-EvIdefendant could have used her if he had DENCE OCCUPATION-QUESTION OF FACT. Appellant's claim that the evidence shows wanted to. All this was objected to. The he was engaged as a masseur and exempted

[2] Two witnesses swore that while Lillie Barnhard lived at Mr. Leonard's, shortly before she removed from there back to appellant's they saw appellant with her in a very secreted place, which was shown to be about 100 yards from Mr. Leonard's mail box. The court therefore did not err in permitting Mr. Leonard and Walter Clopp to swear that Lillie Barnhard frequently went to Mr. Leonard's mail box and remained about it from 20 to 30 minutes to as much as 2 hours. This testimony was admissible. Roller v. State, 43 Tex. Cr. R. 435, 66 S. W. 777.

For the error above pointed out, the judgment is reversed, and the cause remanded.

DENTON v. STATE. (No. 4909.)

1918.)

1. PHYSICIANS AND SURGEONS ~6(10))—CERTIFICATION AND REGISTRATION-BURDEN OF PROOF.

Under Pen. Code 1911, art. 750, making it unlawful to practice medicine without registering authority with district clerk in county of residence and providing that absence of such record is prima facie evidence of want of such certificate, the state must prove such absence from the record.

under Pen. Code 1911, art. 754, from the provi- | R. 367, 163 S. W. 427; Dankworth v. State, sions of article 750 requiring registration for 61 Tex. Cr. R. 157, 136 S. W. 788. practice of medicine, held not sustained as a matter of law; his occupation being a question of fact for the jury (citing Words and Phrases, vol. 3, Second Series, p. 113).

Appeal from Floyd County Court; E. P. Thompson, Judge.

W. B. Denton was convicted of practicing medicine in violation of law, and he appeals. Reversed and remanded.

A. P. McKinnon and Kenneth Bain, both of Floydada, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. [1] Appellant's conviction was for practicing medicine in violation of article 750, P. C., which makes it unlawful for any one to practice medicine "who has not registered in the district clerk's office of the county in which he resides, his authority for so practicing, verified by oath." The statute also contains a statement that the clerk shall indorse upon the certificate the fact that the oath has been made and recorded, and concludes as follows:

"The holder of the certificate must have the the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie evidence of the want of possession of such certificate."

There was no evidence introduced to the effect that appellant's authority had not been registered as required by the statute. It is not unlawful to practice medicine, but it is

The judgment, of the lower court is reversed, and the cause remanded.

MCGREGOR v. STATE. (No. 4873.) (Court of Criminal Appeals of Texas. Feb. 13, 1918.) 1. INDICTMENT AND INFORMATION 137(3)— MOTION TO SET ASIDE-PRESENCE OF UNAUTHORIZED PERSONS-"DELIBERATING."

As used in Code Cr. Proc. 1911, art. 570, providing that motion to set aside indictment may be made on the ground that some person not authorized by law was present when the tion, "deliberating" means weighing with view grand jury were deliberating upon the accusato decision, mutual discussion and examination for and against.

and Phrases, First and Second Series, Deliber[Ed. Note.-For other definitions, see Words ate; First Series, Deliberating Upon The Accusation.]

2. GRAND JURY 39-PRESENCE OF UNAUTHORIZED PERSONS-"DELIBERATING.

427, 428, stating, when the state's attorney In view of Code Cr. Proc. 1911, arts. 426, may be before the grand jury, and article 570, authorizing motion to set aside indictment if some person not authorized by law was present when the jury were deliberating upon the accusation, indictment found after state's and district attorney, sheriff, and chief of police were before the grand jury, discussing whether to proceed by injunction or indictment, was unlawful.

Appeal from Tom Green County Court; Chas. T. Paul, Judge.

Bobbie McGregor was convicted of keep

unlawful to do so without compliance with ing a bawdyhouse, and she appeals.

the statute. The offense is the practice of medicine without compliance with the statute, and the burden is upon the state to prove the offense. There will be found decisions of other states holding, under certain circumstances, the burden of making proof of authority to practice medicine is not upon the state because a fact within the peculiar knowledge of the accused. 30 Cyc. 1567. Such is not the case here, as the statute it

self prescribes a rule of evidence making the absence of the record prima facie evidence of the want of such certificate, and requiring that the certificate be recorded in the county

in which the accused is residing at the time renders it easy for the state to make the proof of records of the particular county. The failure to make the proof in this in

stance characterizes the evidence as insufficient.

versed and remanded.

Re

Anderson & Upton, of San Angelo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Appellant's conviction was for keeping a bawdyhouse.

A motion to quash the indictment was made, and the evidence heard on the motion preserved. The motion asserts that unauthorized persons were with the grand jury during its deliberations touching the indictment. The evidence taken is too long to give in detail. It appears that the grand jury, while in session, had under consideration the subject of bawdyhouses for a couple the grand jury on the subject Mr. Allen, the of days. During this time there was before sheriff, Mr. Snow, chief of police, Mr. Jack

son, an attorney, Mr. Curtsinger, county at[2] The appellant's suggestion that the evi- Ketchum, and Mr. Morgan, none of whom torney, Mr. Collins, Mr. Thomas, Mr. Van dence shows that the occupation in which he were members. Some of these parties were was engaged was that of a masseur and ex-witnesses, and one of them was the district empted by article 754, P. C., from the pro- attorney and another the county attorney. visions of article 750, P. C., cannot, we think, Whether the others were witnesses or not is be sustained as a matter of law. The char- not disclosed. It appears that there had acter of his occupation was a question of been some previous prosecutions for keeping fact. See Words and Phrases, vol. 3, Second bawdyhouses, and that an injunction had Series, p. 113; Newman v. State, 72 Tex. Cr. been obtained against some persons keeping

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