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at that time he did not think or believe and , posed to be friendly to the state, their abdoes not now think or believe that said defend. sence was not imputed to appellant, nor ant was shooting at him, the said Harry Beard; that all of said testimony is material to defend' sought to be. ant's defense,” etc.

The judgment will be reversed, and the [1, 2] These excerpts are set out in the con

cause remanded. tinuance together with the testimony admitted as being the testimony of the two Beards.

CORDILL V. STATE. (No. 4876.) We are of opinion this testimony was ma- (Court of Criminal Appeals of Texas. Feb. 20, terial, and was germane and proper to have

1918.) zone to the jury as to the existing feeling be- ADULTERY Cw14 -- EVIDENCE-SUFFICIENCYtween the parties at the time. They had "HABITUAL.”

Evidence of the paramour and accomplice been friends, and no difficulty had occurred

as to nine specific acts of sexual intercourse and nothing to show, so far as this applica- with her between the 15th of August and the tion is concerned and the statements of the 25th day of December at intervals of from 1 parties, that there was any ill feeling be- to 2 weeks, and in one instance an interval of tween them at the time the shots were fired. / 242 or 3 months, only three of which were cor

roborated, without proof of attending circumIf Harry Beard was in the store at the time stances indicating that the intercourse was the shots were fired, and the state's theory habitual, held insufficient to sustain a convicwas that one of them was fired at him, he tion of adultery by habitual carnal inter

without living together; "habitual" would certainly have known whether defendant was shooting at him, and ought to be Appeal from Howard County Court; S. A. able to tell some reason why he was

so Penix, Judge. shooting. And certainly it was legitimate

J. S. Cordill was convicted of adultery by testimony for the defendant to show, imme- habitual carnal intercourse without living diately after the shooting and while still in together, and he appeals. Reversed. the store where it occurred, what occurred H. R. Debenport and Jno. B. Littler, both between them with reference to the shoot of Big Springs. for appellant. E. B. Hening, and the conversations that occurred be- dricks, Asst. Atty. Gen., for the State. tween them. It was clearly res gesta, as it was immediately after the shooting and al- MORROW, J. Appellant was convicted of most in connection with it. The court says adultery by habitual carnal intercourse withthis testimony, if testified as stated, would out living together. not probably be true. With the testimony The paramour testified to nine specific acts admitted by the state to be true, which went of sexual intercourse occurring between the before the jury, we are of opinion the re- 15th of August and the 25th day of December, jected testimony was material. It bore upon 1916, at intervals varying from 1 to 2 weeks, the same question, and was explanatory of except that in one instance there was an init, and especially as to their feeling toward terval of some 2142 or 3 months. The testieach other. Appellant's theory was that he mony of the paramour is treated as accomdid not shoot at him, that he had no reason plice testimony, requiring corroboration. Arfor shooting at him, and no cause for it, and ticle 801, C. C. P.; Jackson v. State, 51 Tex. that he did not in fact shoot at him. Tak-Cr. R. 220, 101 S. W. 807; Wallace v. State, ing these matters together, the fact they 63 Tex. Cr. R. 611, 141 S. W. 95. To supply were friendly up to the time of the shooting this the state used the testimony of the sister and immediately after the shooting, within of the paramour, who testified to her presence a few minutes, which seems not to be denied, on three occasions when carnal intercourse and that appellant got in the buggy with the took place. Mr. Branch, in section 1053 of two Beards, one of them who was the al- his Annotated P. C., collates the Texas cases leged assaulted party, and drove out to their in the following note: homes in the country east of town, we are of "Proof of an occasional act of carnal interopinion that the excluded testimony, espe- course is not sufficient to show 'habitual carnal cially in the light of the admitted testimony, intercourse. Cohen v. State, 11 Tex. Cr. App.

337 (circumstances). Hilton v. State, 41 Tex, was material, germane, and explanatory, and Cr. R. 193, 53 S. W. 113 (once a month for not only so, but it was evidence of the par- three months). Collins v. State, 46 Tex. Cr. ties themselves to the supposed difficulty, R. 550, SO S. W. 372 (five times a month). Bosshowing that there was no trouble between well v: State, 48 Tex. Cr. R. 48, 85 s. w. 1077

[122 Am. St. Rep. 731] (six times during sumthem, and that Beard himself did not under- mer and fall). Taylor v. State, 48 Tex. Cr. R. stand he was being shot at.

216, 87 S. W. 148 (four times a week apart). There are quite a number of bills of ex: Quinn v. State, 51 Tex. Cr. R. 155, 101 . W.

Curlee v. State, 98 S. W. 840 (four times). ception which are hardly sufficiently stated 248 (two acts and familiarity). Hutchinson to require reviewing. Upon another trial v. State, 108 S. W. 378 (three times). Wallace these matters may not occur. If they do, the x: State, 63 Tex. Cr. R. 611, 141 S. W. 95 (six

times two weeks apart).” bills of exception will be more explicit. We are of opinion appellant was entitled to his In Hilton v. State, 41 Tex. Cr. R. 193, 53 S. continuance. These were state's witnesses, W. 113, the definition of "habitual” is quotand if Harry Beard was shot at, or sup-) ed as follows:

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

“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. The court says: "The statute requires, whero the parties do

PRENDERGAST, J. not live together, that the proof must show

Appellant appeals habitual intercourse, and not merely occasional from a conviction of adultery. In view of the acts."

disposition made of this case, the evidence A similar interpretation of the word "ha- will not be stated to any extent nor commentbitual" as used in the statutes has been made ed upon. Appellant earnestly contends that in various cases cited in Words and Phrases, the evidence was wholly insufficient to susvol. 2 (2d Series) p. 816. From the decisions tain the conviction. Under the circumstancof this court we understand that proof of oc es it is deemed unnecessary to decide this casional acts of carnal intercourse does not question. alone prove habitual carnal intercourse; that The indictment charged that appellant, a is to say, where the state relies alone upon man, on or about November 1, 1916, and conproof of specific instances of a limited nuin- tinuously since then to July 19, 1917, unlawber of acts of this character, and where the fully lived together and had carnal interevidence excludes the idea that there were course with Lillie Barnhard, a woman, while other acts, and where there are no attending then and there being lawfully married to circumstances upon which to found the infer- another person, Mrs. Lula Green, who was ence that the intercourse was habitual, the then and there living. proof is not suficient. It is to be remember Appellant was married to his said wife, ed, however, that in this class of cases it is Lula, years before, and they lived together generally necessary to depend, at least in as man and wife until about February 1, part, upon circumstantial evidence to estab- 1917. Up to that time they had five children, lish the offense. 25 Cyc. 215. And occasional | the oldest 11 years and the youngest about acts of illicit intercourse are potent circum- 2 years old. Soon after they separated stances when accompanied by other proof his wife had another child by him. tending to show that the relation was habitu Said Lillie Barnhard was a young woman al, and when so attended and lead to a con- about 20 years old. For several years past viction, it would be sustained, although the she had been living with first one and an. number of actual acts proved is very limited, other in the community where the Greens or even proved alone by circumstances. In lived as one of the family with whom she this case, as we understand the facts, there is lived, doing her part of the work, for which no contention there were other acts, or evi- she got no pay except her board and clothdence of other acts, or other relationship ing. In 1916, appellant's wife's health not than that which is testified to by the accom- being so good, they concluded to get, and did plice and above detailed, corroborated to the get, Miss Barnhard to come and live with them extent and in the manner stated, and it as she had been then with ot] families. It would seem that this proof would, under the seems by January, 1917, Mrs. Green became decisions of this court, classify the transac- suspicious of improper relations between aptions as occasional rather than habitual, and pellant and Miss Barnhard. This being comrender it proper to order a reversal of the municated to Miss Barnhard, she left the judgment of the court below, which is ac- Green's and made arrangements with an old cordingly done.

lady and gentleman, Mr. Leonard and wife, about two miles distant, to live with them in

the same way that she had lived with others. GREEN v. STATE. (No. 4864.)

Soon after this, about February 12th, Gree?? (Court of Criminal Appeals of Texas. Feb. 20, and his wife separated. She went to her 1918.)

father's in Comanche county, and he re1. CRIMINAL LAW 0730(11)-IMPROPER AR- | mained, it seems, where they had been living. GUMENT-OBJECTIONS TO WIFE'S TESTIMONY. She took with her their eldest girl, 11 years

Argument of the prosecution in adultery old, and the little boy, several years younger. trial referring to accused's refusal to allow his wife to testify was reversible error, although Appellant himself kept said two little girls, the court charged the jury not to consider it. one 10 and the other 5 years of age. Soon 2. LEWDNESS !! - LIVING IN ADULTERY after the separation he began negotiations EVIDENCE--ADMISSIBILITY.

with Miss Barnhard to get her to come back In adultery prosecution, where state's witnesses had testified to seeing accused with the to his house, do the work, attend to his chilwoman in a very secreted place near a certain dren, and live there with them, which she mail box, evidence that the woman frequently did. went to the mail box and remained there from

It seems the house they lived in consisted of 20 minutes to 2 hours was admissible.

two rooms with a cage or sleeping porch add. Appeal from Coryell County Court; H. ed to the back one. It was claimed that Miss E. Bell, Judge.

Barnhard slept in the front room with the Grundy Green was convicted of adultery youngest little girl, and appellant, when it and appeals. Reversed and remanded. was not too cold, slept in the cage with his

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

other little girl; that when it got too cold court by charge withdrew said matters, and
for this he would move his bed into the room told the jury not to consider them.
adjoining the other, and he and his child Under the recent rulings of this court, this
slept there. Miss Barnhard moved to appel- shows reversible error. Eads V. State, 74
lant's some time in March, 1917, and has Tex. Cr. R. 628, 170 S. W. 146, and cases
tontinuously lived there with him and his there cited. (This writer did not, and does
Wo said children since then. In July, 1917, not, concur in the extent of such holding.)
the grand jury indicted him as stated.

Appellant has some other bills to the lanThere are a great number of bills of ex- guage used in argument by the attorneys for ceptions. It will be unnecessary to pass upon the state which is claimed to be inflammatory each of them. The most material ones will and hurtful. Of course, attorneys should be be passed upon.

careful and stay within the record, discuss [1] Appellant has several bills on the same the testimony, the legitimate inferences to be subject. These show that the state had drawn therefrom, and such comment on the sworn and placed on the stand appellant's witnesses as their testimony, and the cirwife, who testified that she was his wife, but cumstances justify, but should not use otherwas then living in Comanche county with wise inflammatory language her father; that she had lived with her hus- Some complaint was made to the court's band at a certain place in Coryell county; charge on circumstantial evidence and of the that they separated about February 12th ; | refusal of the court to give that on the subthat she took with her when they separated, ject asked by appellant. We have examined and thereafter kept, two of their children; the court's charge, and that of appellant reand that appellant himself kept the other

fused. There is no substantial difference three. She testified to the ages and names of pointed out between the two, and we think their several children, and that after they that of the court was sufficient. It would had separated she had borne another child by in the standard form of such charges.

have been proper to have given such charge, appellant. Up to this time appellant made no

There was objection to his wife being sworn and testi- in evidence the letter of appellant to his

no error in the court admitting fying what she did. Thereupon the county daughter Ruby, who was with appellant's attorney stated to the court in the hearing wife, dated April 2, 1917, at least that part and before the jury that the state could not relating to the criticisms of him. It might use her as a witness if the appellant objected, be well contended that the balance of this and he tendered her to the defendant as a letter was in appellant's favor, and not witness for both sides, and that, if he desired against him, not harmful to him. to object to any further questions to her of

[2] Two witnesses swore that while Lillie the material facts because she was not a Barnhard lived at Mr. Leonard's, shortly competent witness, the state did not insist before she removed from there back to apon asking her further questions. Thereupon pellant's they saw appellant with her in a the appellant objected to the action of the very secreted place, which was shown to be court in permitting the state to use her as about 100 yards from Mr. Leonard's mail box. a witness so far as it had, and excepted to The court therefore did not err in permitting the said statement of the county attorney be- Mr. Leonard and Walter Clopp to swear that cause he knew that she was not a competent Lillie Barnhard frequently went to Mr. Leonwitness against him, and it was improper ard's mail box and remained about it from to use or offer her as a witness under the 20 to 30 minutes to as much as 2 hours. This circumstances, and that the action of the testimony was admissible. Roller v. State, county attorney under the sanction of the 43 Tex. Cr. R. 435, 66 S. W. 777. court so far was highly prejudicial and harm

For the error above pointed out, the judgful to him. During the argument of the case ment is reverse and the cause remanded. before the jury an attorney privately prosecuting referred to the testimony of his wife and to the fact that she was tendered as a

DENTON V. STATE. (No. 4909.) witness, and that appellant would not let (Court of Criminal Appeals of Texas. Feb. 20, her testify; that she had been in attendance

1918.) on the court all day, and he dared not put 1. PHYSICIANS AND SURGEONS 6(10))–CERher on the stand as a witness. Other state

TIFICATION AND REGISTRATION-BURDEN OF

PROOF. ments in argument by this attorney in this

Under Pen. Code 1911, art. 750, making it connection were also objected to. The county unlawful to practice medicine without registerattorney in his closing argument again re-ing, authority with district clerk in county of ferred to putting defendant's wife on the record is prima facie evidence of want of such

residence and providing that absence of such stand as a witness, and stated that he would certificate, the state must prove such absence not comment thereon, but said that all he was from the record. going to say was that she was here, and the 2. PHYSICIANS AND SURGEONS Cw6(11)--Evidefendant could have used her if he had

DENCE-OCCUPATION-QUESTION OF FACT. wanted to.

Appellant's claim that the evidence shows All this was objected to. The he was engaged as a masseur and exempted

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

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

The judgment, of the lower court is reof fact for the jury (citing Words and Phrases, versed, and the cause remanded. vol. 3, Second Series, p. 113).

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

McGREGOR V. STATE. (No. 4873.) W. B. Denton was convicted of practicing (Court of Criminal Appeals of Texas. Feb. 13, medicine in violation of law, and he appeals.

1918.) Reversed and remanded.

1. INDICTMENT AND INFORMATION Cw137(3)

MOTION TO SET ASIDE-PRESENCE OF UNAUA. P. McKinnon and Kenneth Bain, both of THORIZED PERSONS--"DELIBERATING. Floydada, for appellant. E. B. Hendricks,

As used in Code Cr. Proc. 1911, art. 570, Asst. Atty. Gen., for the State.

providing that motion to set aside indictment may be made on the ground that some person not authorized by law was present when the

grand jury were deliberating upon the accusaMORROW, J. [1] Appellant's conviction tion, deliberating" means weighing with view was for practicing medicine in violation of to decision, mutual discussion and examination article 750, P. C., which makes it unlawful for and against. for any one to practice medicine "who has

(Ed. Note.-For other definitions, see Words not registered in the district clerk's office of ate; First Series, Deliberating Upon The Ac

and Phrases, First and Second Series, Deliberthe county in which he resides, his authority cusation.] for so practicing,

verified by oath.” 2. GRAND JUNY 39-PRESENCE OF UNAUThe statute also contains a statement that THORIZED PERSONS-"DELIBERATING. the clerk shall indorse upon the certificate

In view of Code Cr. Proc. 1911, arts. 426,

427, 428, stating, when the state's attorney the fact that the oath has been made and may be before the grand jury, and article 570; recorded, and concludes as follows:

authorizing motion to set aside indictment if “The holder of the certificate must have the some person not authorized by law was present the same recorded upon each change of resi- when the jury were deliberating upon the acdence to another county, and the absence of cusation, indictment found after state's and dissuch record shall be prima facie evidence of the before the grand jury, discussing whether to

trict attorney, sheriff, and chief of police were want of possession of such certificate."

proceed by injunction or indictment, was un

lawful. There was no evidence introduced to the

Appeal from Tom Green County Court; effect that appellant's authority had not been

Chas. T. Paul, Judge. registered as required by the statute. It is

Bobbie McGregor was convicted of keepnot unlawful to practice medicine, but it is unlawful to do so without compliance with

ing a bawdyhouse, and she appeals. Re

versed and remanded. the statute. The offense is the practice of medicine without compliance with the stat

Anderson & Upton, of San Angelo, for apute, and the burden is upon the state to prove pellant. E. B. Hendricks, Asst. Atty. Gen., the offense. There will be found decisions of for the State. other states holding, under certain circumstances, the burden of making proof of au

MORROW, J. Appellant's conviction was thority to practice medicine is not upon the

for keeping a bawdyhouse. state because a fact within the peculiar

A motion to quash the indictment was knowledge of the accused. 30 Cyc. 1567. made, and the evidence heard on the motion Such is not the case here, as the statute it

preserved. The motion asserts that unauself prescribes a rule of evidence making the thorized persons were with the grand jury absence of the record prima facie evidence during its deliberations touching the indict.

ment. of the want of such certificate, and requiring

The evidence taken is too long to that the certificate be recorded in the county

give in detail. It appears that the grand in which the accused is residing at the time jury, while in session, had under considerarenders it easy for the state to make the of days. During this time there was before

tion the subject of bawdyhouses for a couple proof of records of the particular county. the grand jury on the subject Mr. Allen, the The failure to make the proof in this in- sheriff, Mr. Snow, chief of police, Mr. Jackstance characterizes the evidence as insuffi.

son, an attorney, Mr. Curtsinger, county atcient. [2] The appellant's suggestion that the evi- torney, Mr. Collins, Mr. Thomas, Mr. Van

Ketchum, and Mr. Morgan, none of whom 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

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

them, and that the injunction had been dis- was discussed there, under the evidence we solved. These matters were discussed by the had there, whether we would return bills of parties before the grand jury and the grand | indictment or let the matter be handled by jurors, and the general subject of the best a writ of injunction, and that was in the way to deal with bawdyhouses was discuss- presence of Mr. Collins who was not a memed. It appears that the appellant and others ber of the grand jury," and Mr. Curtsinger, were under consideration; that their names the county attorney ; that he was not sure bad been given the grand jury as persons that both were present at the same time, keeping bawdyhouses.

and he thought Mr. Jackson, an attorney, The sheriff says the grand jurors talked was present at one of these discussions as to about whether they would indict these wo- the propriety of finding an indictment. men running bawdyhouses or go the injunc- Mr. Coleman, one of the grand jurors, said tion route. The grand jury was discussing they had the names of the persons whom which was the best way to proceed, whether they understood were running bawdyhouses, through injunctions or indictments. He said including appellant, but they were not conwhile he was present there was a discussion sidered or discussed individually; that they between one of the members of the grand had evidence before the grand jury with refjury and the county attorney or district at- erence to the matter, and there was a distorney with reference to the character or cussion in the grand jury room with refersufficiency of the evidence necessary in such ence to the best means of controlling bawdyprosecutions, the discussion being rather an houses over the state, different theories beargument, the attorney entertaining one ing advanced and discussed by the county view and the juror another as to the charac- attorney and others, among them Mr. Jackter and sufficiency of the evidence.

son, and that he thought Mr. Jackson was The chief of police testified he was before asked by one of the jurors for his opinion as the grand jury, and that the bawdyhouse to the propriety of indicting the women, and matter was under discussion; that he enter they talked about it in a general way. The tained different views from some members of chief of police said, after he had been given the grand jury as to the best method of a list of names of persons keeping bawdydealing with the matter, going in his testi- houses, that there were discussions in his mony into some detail as to the discussion presence in the grand jury room as to the between himself and one member of the propriety of returning bills of indictment or grand jury as to whether it would be better making efforts to restrain by injunction or to indict or to seek an injunction against some other means. At the time he was a the parties, including appellant, who was witness, and the county attorney was pres. mentioned by name.

ent and entered into the discussion as to the The foreman of the grand jury said, in best means to deal with bawdyhouses. substance, that the discussion of the matter “The deliberations of the grand jury shall was not specifically with reference to the be kept secret." C. C. P. art. 425. The appellant, but with reference to the general grand jurors take an oath to keep them subject of dealing with bawdyhouses in San secret. C. C. P. art. 416. They may take adAngelo. He said that if the propriety of vice from the state's attorney, and he may finding an indictment, instead of proceeding examine the witnesses before them. C. C. P. by injunction, was discussed by the grand arts. 427, 428, and “The attorney representing jury while others were present, it was while the state may go before the grand jury at Mr. Collins or Mr. Jackson was present. He any time, except when they are discussing thought a discussion before the peace offi- the propriety of finding a bill of indictment cers had reference mainly to previous ex

or voting upon the same.” c.(c. P. art. 426. periences and prosecutions of that kind; that The statute (article 570, C. C. P.) says: they gave their opinion to a certain extent "A motion to set aside an indictment shall be about methods; that he did not think the based on one or more of the following causes matter was discussed before Mr. Allen, the not authorized by law was present when the

and no other :

2. That some person sheriff, but it might have been before Mr. grand jury were deliberating upon the accusaSnow, the chief of police, and that it was tion against the defendant, or were voting upon discussed with Mr. Collins or Mr. Jackson,

the same." or one of them; that is, the propriety of

Construing these provisions of the statute, finding a bill of indictment or injunction, it has been held that among the persons auand that he could not say whether Mr. Curt- thorized by law to be present with the grand singer, the county attorney, was present then jury were the state's attorney, his assistant or not; that the county and district attorney and stenographer, witnesses and members of were in and out; that in the talk while some the grand jury disqualified in the particular of these parties were present, one of the inquiry under investigation. Stuart v. State, jurors talked so loud that he had to be re- 35 Tex. Cr. R. 440, 34 S. W. 118; Sims v. quested to modify his tone. This discussion State, 45 S. W. 705; Wilson v. State, 41 Tex. related to the sufficiency of the evidence to Cr. R. 115, 51 S. W. 916; McElroy v. State, warrant conviction. That the appellant was 49 Tex. Cr. R. 604, 95 S. W. 539; Moody v. one of the parties under discussion, “and it | State, 57 Tex. Cr. R. 76, 121 S. W. 1117;

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