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BILITY.

Wm. McDonald, of San Augustine, for apLOWE V. STATE. (No. 4810.)

pellant. E. B. Hendricks, Asst. Atty. Gen., (Court of Criminal Appeals of Texas. March for the State.

6, 1918.) 1. JUDGES m25(2) — SPECIAL JUDGES - AP

MORROW, J. Appellant was convicted of POINTMENT-VALIDITY.

murder. After verdict he raised the point Where the regular judge became an officer that it should be set aside because of the ilof the National Guard, and the bar elected a special judge, and the regular judge thereafter legality of the election of the special judge went into the federal service, the special judge who tried the case. had power, under Vernon's Sayles' Ann. Civ.

It appears that the regular judge became St. 1914, art. 1678, as to election of special judges, to continue the term already begun in an officer in the National Guard on the 19th spite of Const. art. 5, $ 28, requiring vacancies day of July, 1917, and went on the payroll in judgeships to be filled by the Governor, and of the federal government as an officer in article 16, $ 17, providing that all officers shall the military service August 4, 1917. It apcontinue their duties until their successors are qualified, since article 16, § 12, prohibits one pears that on the 16th of July, 1917, at a holding office under the United States from regular térm of court, they elected Hon. holding office under the state.

Garland Smith special judge, and that on 2. OFFICERS Om55(2) — HOLDING OTHER OF- August 1, 1917, while the special judge was

FICE--JUDGES ENTERING MILITARY SERVICE
OF UNITED STATES-RIGHT OF ELECTION.

presiding the appellant was tried. He When one accepts an incompatible office makes the point that the office of district with the one he holds, he may elect which to judge became vacant upon the entry of the abandon, but when a judge accepts an office in the military service of the United States, his regular judge into military service, and that tenure as judge ceases by direct provision of the tenure of the special judge depended up Const. art. 16, 12.

on the continuance in office of the regular 3. JUDGES 26 POWERS DE FACTO judge, and that when the latter vacated his JUDGES.

The acts of a judge elected in the absence office his act in doing so operated to termiof the regular judge by the bar of a county are nate the authority of the special judge. valid on the principle that he was a de facto Section 28, art. 5, of the Constitution proofficer, since he had possession of a legally con- vides that vacancies in the office of district stituted office under color of authority. 4. HOMICIDE Cw169(3)–EVIDENCE-ADMISSI

judge shall be filled by the Governor until

the next succeeding election. Section 17 of In a prosecution for homicide, testimony of article 16 of the Constitution provides: a prior difficulty during which accused had a

"All officers within this state shall continue knife in his hand was admissible as tending to to perform the duties of their offices until their show the state of mind of accused.

successors shall be duly qualified." 5. CRIMINAL LAW F368(1)-EVIDENCE-RES GESTÆ.

Construing this section, it has been held In a prosecution for murder, testimony of that a public officer could not arbitrarily a witness as to what deceased's father said, divest himself of the obligation and authorabout 60 yards from the killing, while a fight ity to perform the duties of his oflice until was going on, to the effect that they were killing his boy, was admissible as res gesta.

his successor qualified, and that although 6. CRIMINAL LAW (m598(6)–CONTINUANCE, he resigned, and his resignation be accepted, DILIGENCE.

that notwithstanding, the provision of the Where the homicide occurred in August, Constitution mentioned would operate to 1916, the indictment was returned January 5, 1917, a subpæna for an absent witness was not continue him in office until his successor applied for until July 6th, and a new subpena qualified. McGhee v. Dickey, 4 Tex. Civ. issued on July 24th, and returned on the 2d App. 104, 23 S. W. 405, and cases cited; of August, there was no sufficient showing of diligence to warrant a continuance when the Harris' Constitution, p. 745, and cases listed. trial was called for August 1st.

[1] It is believed, however, that when a 7. HOMICIDE 286(1) – IINSTRUCTIONS-IN- judge of one of the courts of the state be

comes an officer in the United States army In prosecution for homicide alleged to have been committed with a hoe and a stick of wood, that the matter of vacancy is not controlsince the weapon was not per se a deadly weap- led by section 17 of article 16 of the Conon, a charge that the intent to kill was not stitution, but is controlled by section 12 of to be presumed except from the manner in said article which provides, in substance, which the weapon was used should have been given as required by Pen. Code 1911, art. 1147. that no person holding or exercising any of8. HOMICIDE 325—APPEAL AND ERROR-fice of profit or trust under the United SCOPE.

States shall be eligible to hold or exercise In prosecution for murder with a weapon not per se deadly, failure to charge that intent any office of profit or trust under this state. to kill could not be presumed from the use of This conclusion is supported by the decision the weapon was an omission not reviewable in of the Supreme Court of this state in State the absence of specific exception, or of request v. De Gress, 53 Tex. 400. Other cases bearfor and refusal of the charge.

ing on the subject are Bishop v. State, 149 Appeal from District Court, San Augustine Ind. 223, 48 N. E. 1038, 39 L. R. A. 278, 6:3 County; Garland Smith, Special Judge. Am. St. Rep. 279; Oliver V. Jersey City,

Dinke Lowe was convicted of murder, and 63 N. J. Law, 104, 42 Atl. 784. See, also, he appeals. Affirmed.

notes in 83 Am. Dec. 375; 12 L. R. A. 125.

TENT.

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

[2] It seems that when one accepts an in- , 40 S. E. 375. Another case throwing light compatible office with the one he holds he on the subject is Ford v. Simmons (Civ. bas the right of election to abandon one of App.) 171 S. W. 1077; Cyc. vol. 23, p. 611. them (Cyc. vol. 23, p. 518; Webb v. Reyn [3] In addition to the view that by virtue olds (Civ. App.) 160 S. W. 153), but that, of the statute under the facts of the case when an officer of the state accepts an office the special judge could continue to hold the of profit in the military service of the Unit- term of court, it would seem his acts as ed States, his tenure as judge ceases by vir- judge would be valid against the attack made tue of the constitutional provision contained upon the principle that he was a de facto in article 16, § 12, supra.

officer. There was an office, and his possesApplying this view to the facts of the sion of it was under color of authority, name present case, it appears that on the date fol- ly, the statute, and even if the conditions lowing the election of the special judge the were such that he was not a judge de jure, regular judge vacated his office. Section 7 we discern no reason why he would not have of article 5 of the Constitution contains the been such de facto. See Ruling Case Law, following provision:

vol. 8, p. 518; Cyc. vol. 29, p. 1391; 23 Cyc. “The Legislature shall also provide for the p. 618. holding of district court when the judge thereof is absent, or is from any cause disabled or dis- blows inflicted with a missile of some kind.

The deceased was killed by a blow or qualified from presiding." Article 1678, Vernon's Texas Civil Stat- The indictment charged a hoe and a stick

of wood, and there was evidence supporting utes, is as follows:

these allegations. "Whenever, on the day appointed for a term

Appellant, his brother, of the district court, or at any time before the mother, and sister were together at church expiration of the term, or the completion of and after church, on the road, fell in with all the business of the court, the judge thereof the deceased, Leon Lee, Franklin Lee, and shall be absent, or shall be unable or unwilling to hold the court, there shall thereby be no fail- other members of the Lee family. All the ure of the term, and no failure to proceed with parties were negroes. A quarrel took place, the business of the court, but the practicing law- growing out of an accusation, or supposed yers of such court present thereat may proceed accusation, against appellant of stealing to elect from among their number a special judge of said court, who shall proceed to hold chickens, made by Franklin Lee. A fight ensaid court and conduct the business thereof, and sued in which several members of the party shall have all the power and authority of the took part and culminating in deceased rejudge of said court, during such continued absence or inability, and until the completion of ceiving a blow on the head from which he any business begun before such special judge." | died.

This statute was held by this court au One of the witnesses testified that at the thorized by section 7 of article 5 of the Con- request of Franklin Lee he went to Franklin stitution in the case of Greer v. State, 65 S. Lee's house to trace some chicken thieves, W. 1077. The case of Wynn v. Edmondson beginning at the chicken house, which had (Civ. App.) 150 S. W. 310, touches the same been broken open, and while he and Franksubject.

lin Lee were tracing some tracks which he The question presented then is: Did the says were 200 or 300 yards from old Jake term of court continue in session after the Lowe's house appellant approached them and regular judge vacated his office and was the asked Franklin Lee what he was doing, apspecial judge, elected before the office was pellant having a knife in his hand; that he vacated by the regular judge, authorized to did not hear Lee's reply, but heard appelcontinue to preside and continue business of lant say, "My God, I don't like for anybody the court.

to accuse me of stealing chickens," and Lee It seems to us that the proper construc- replied, “Ain't anybody accusing you of stealtion of the statute (article 1678) answers ing chickens; we are just tracking these this question in the affirmative. The same tracks to see where they went;" that appelquestion was before the court of Civil Ap- lant followed along, and other conversations peals in the case of Glover v. Albrecht, re- took place which witness did not understand. ported in 173 S. W. 505, in which the facts This was objected to as tending to prove an were that after the election of the special independent disconnected crime. Neither the judge the regular judge during the term of statement of facts nor bill of exceptions discourt died, and the holding was that the closed at just what time with reference to term of court continued in session, and the the homicide this conversation took place. authority of the special judge did not cease There was an issue of self-defense and a upon the death of the regular judge. The controversy and conflicting evidence as to court in deciding the case says it does not who began the difficulty in which deceased find the identical question passed upon, but lost his life, and there was evidence that cites as analogous Ellis v. State, 56 Tex. Cr. the difficulty arose over the accusation of R. 14, 117 S. W. 978, 133 Am. St. Rep. 953; appellant of chicken stealing made by FrankEdwards V. James, 13 Tex. 53; Harris v. lin Lee. Musgrave, 72 Tex. 20, 9 S. W. 90; Mont [4] Testimony of the character disclosed gomery v. Viers, 130 Ky. 694, 114 S. w. in the bill, as we understand, is admissible 251; Franklin v. Vandervort, 50 W. Va. 412, under such circumstances as tending to show

the state of mind of the accused. Such was abused its discretion in refusing the applithe holding of the Supreme Court in an opin- cation. See Hunter v. State, 59 Tex. Cr. R. ion of Chief Justice Roberts in Carr's Case, 439, 129 S. W. 125; Trinkle v. State, 59 Tex. 41 Tex. 545, which was adhered to by this Cr. R. 257, 127 S. W. 1060; Vernon's C. C. court in Water's Case, 54 Tex. Cr. R. 327, P. p. 319, note 32, and cases cited. The ap114 S. W. 628, and in Howard's Case, 25 plication shows that at the time the subpoena Tex. App. 602, 8 S. W. 806; also Hamblin v. was applied for, July 6th, the residence of State, 41 Tex. Cr. R. 140, 50 S. W. 1019, 51 the witness was unknown. It appears that S. W. 1111. For other cases see Branch's he was in the county where the homicide P. C. 88 1881 and 1882.

took place on the night of the homicide; [5] A bill asserts that the court erred in that the subpæna was not applied for for admitting evidence of a witness who claim- more than six months after the indictment ed that on the night of the difficulty, about was filed. When he ceased to abide in the 60 yards from where it occurred, he met county, what efforts were made to ascertain Franklin Lee running; that at the time there his whereabouts in the meantime, whether was a racket going on at Canton's house the appellant knew of his departure or not, (the place of the homicide), and Lee seemed are matters upon which the application is to be coming from there, and remarked, “Go silent, and upon which there should have on down there; they are killing my boy.” been averments setting up the facts upon This was objected to as hearsay.

which appellant relied as excusing delay. The record shows that Franklin Lee was Yelton v. State, 170 S. W. 318, and cases listone of the parties engaged in the difficulty, ed in Vernon's C. C. P. p. 307, note 4. and there is testimony that during its con [7,8] There were no exceptions filed to the tinuance he ran. The witness whose testi- court's charge, which, with the special mony is objected to said that when he met charges given, fairly submitted the issues Lee that a fuss was going on; they were with the exception of an omission to charge talking loud, and Lee was running. This the law touching intent to be drawn from occurred within a short distance, 50 or 60 the use of the weapon. The weapon used yards, of the homicide. We think this tes- was not per se a deadly weapon, and, if re timony was admissible as res gestae. Cases quested, a charge embodying the proposition in point are Black v. State, 8 Tex. App. 329; that the intent to kill was not to be presumed Fleming v. State, 54 Tex. Cr. R. 342, 114 S. unless from the manner in which the weapon W. 383; Shumate v. State, 38 Tex. Cr. R. was used such intention evidently appeared 266, 42 S. W. 600; Phelps v. State, 15 Tex. should have been given. Pen. Code, art. 1147 ; App. 45; Jeffries v. State, 9 Tex. App. 603; Vernon's C. C. P. p. 716. The failure to give McPhail v. State, 9 Tex. App. 165.

such a charge was an omission which can[6] Appellant made application for a con- not be reviewed by this court in the absence tinuance because of the absence of a witness of a specific exception calling the trial court's by whom it was claimed proof could be made attention to the matter, filed in a timely that he saw deceased at the church a short manner or an exception to the refusal of a time before the difficulty, and that the de special charge. C. C. P. art. 737a; Crossett ceased sought to borrow a pistol from the v. State, 168 S. W. 548; Wright v. State. 73 witness, declaring that he was going to have Tex. Cr. R. 179, 163 S. W. 976; Conger v. a reckoning with the Lowe negroes about State, 63 Tex. Cr. R. 312, 140 S. W. 1112; stealing chickens the night before. The ap Frazier v. State, 62 Tex. Cr. R. 640, 138 S. pellant contends that the trial court abused W. 620; Dowling v. State, 63 Tex. Cr. R. his discretion in overruling the application. 366, 140 S. W. 224; Vernon's C. C. P. art. It appears that the homicide took place in 743, and cases listed on page 525. August, 1916; that the indictment was re Finding no errors presented for review, the turned on January 5, 1917; that a subpæna judgment of the lower court is affirmed. was applied for on July 6, 1917, stating that the residence of the witness was unknown, and the subpoena was issued to Sabine county and returned with the indorsement that

WATSON V. STATE. (No. 4812.) the witness was not found; that his resi- (Court of Criminal Appeals of Texas. March dence was unknown; that the date of the

6, 1918.) return is not shown but on the 24th day of 1. CRIMINAL LAW E598(6)–CONTINUANCEJuly a subpæna was obtained to Cass coun ABSENT WITNESS-DILIGENCE. ty which was issued on the 28th day of July when case was called for trial July 20th, is:

Under indictment returned January 4th, and returned on the 2d of August not ex

suance of process for witness on June 26th did ecuted because witness not found in Cass not show sufficient diligence to warrant contin. county. The case was tried on the 1st day uance, where accused knew of the testimony and of August, 1917. The failure to apply for the witness' absence at an earlier date. a subpæna at an earlier date is not, we think, 2. HOMICIDE Cw332(3) — APPEAL - QUESTION explained in a manner that would justify

OF FACT.

In prosecution for murder, where the testhis court in holding that the trial court ) timony conflicted, and that as to self-defense

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

ERS.

might have warranted acquittal, the jury's ver- that Judge Blackshear ceased to be judge by dict con victing accused could not be set aside.

virtue of his military office at the time of the 3. JUDGES (w25(2)—SPECIAL JUDGES–Pow- trial of appellant. The facts with reference

Where regular judge formed National Guard to that matter are the same in this case'as company, and the bar elected a special judge, in the case of Lowe v. State, 201 S. W. 986. and the regular judge, inducted into federal this day decided in an opinion written by service, resigned as judge, the special judge had power to finish the work of the then unfinished Judge Morrow, where the facts are set out term.

and the matter discussed at some length. We Appeal from District Court, San Augustine are of opinion that the conclusion in that County; Garland Smith, Special Judge. case was correctly reached, and the trial

John Watson was convicted of manslaugh-judge was authorized to try this case and ter, and he appealş. Affirmed.

finish the work of that particular term, alWm. McDonald, of San Augustine, for ap- sworn into service before the end of the term

though Judge Blackshear may have been pellant. E. B. Hendricks, Asst. Atty. Gen., for which Judge Smith was elected special for the State.

judge. It is not deemed necessary to go into

the reasonings in this case as those have been DAVIDSON, P. J. Appellant was convicted of manslaughter and allotted five years in given in the opinion by Judge Morrow in the

case above mentioned. the penitentiary.

The judgment herein will therefore be af[1] The indictment was returned on the 4th

firmed. day of January, 1916. Appellant filed an application for a continuance when his case was called for trial on the 20th of July, 1917, al- PHILLIPS v. STATE. (No. 4827.) leging that process was issued on the 26th (Court of Criminal Appeals of Texas. March 6, day of June, 1917. There is nothing in the

1918.) record to show why process was not issued CRIMINAL LAW Cw1091(4)-APPEAL-BILL OF at an earlier date. The testimony of the ab- EXCEPTIONS-QUALIFICATION. sent witnesses was evidently known, and no

Bill to admission of physician's testimony as

to what accused said very soon after the murexcuse is given why process was not issued der, on ground that he was then under arrest, at an earlier date. On the question of dili- qualified by judge's statement that he was not gence some reason should have been assigned then, under arrest, and contradicted by ac

cused's own testimony, showed no error. why the process had not been so issued explaining or excusing the delay. The absent Appeal from District Court, Henderson testimony was expected to show communi. County ; John S. Prince, Judge. cated threats of the deceased against appel- Alexander Phillips was convicted of murlant. We are of opinion that the diligence der, and he appeals. Affirmed. is not sufficient to require a reversal in view E. B. Hendricks, Asst. Atty. Gen., for the of this record.

State. [2] It is contended the evidence is not sufficient to support the verdict and judgment. PRENDERGAST, J. Upon a trial for murWė are not prepared to assent to this propo- der, appellant was convicted, and the lowest sition. The state's case shows sufficient evi- punishment assessed. dence to justify the jury in their conclusion There were no objections to the court's as well as the refusal of the court to grant charge in any particular. Every issue raisa new trial. The testimony of appellanted by the testimony was properly submitted raises the question of self-defense. There in the charge. was a sharp issue on this question. The jury The only questions presented are by three could have believed appellant's theory and bills to the admission of testimony. The acquitted, but they solved this matter ad- first was to the testimony of Dr. Pully, who versely, and in view of the testimony we testified, among other things, to some statewould not be justified in setting aside the ments by the appellant to him very soon aftjudgment for this reason.

er he cut and killed deceased. This testi[3] There was a question raised with ref-mony was objected to on the ground that aperence to the authority of the trial judge to pellant was under arrest at the time. The try the case. The regular judge was not bill quotes the whole of the testimony of Dr. present. Upon convening the court the at- Pully, not only of what the appellant told torneys selected a member of the bar, Hon. him, but of other material testimony on othGarland Smith, to preside over the court dur- er points as well. Appellant's objection that ing the term, and as such special judge he he was under arrest at the time is a mere tried appellant's case. In the motion for a objection. It was not approved as a fact by new trial it is alleged that Judge Blackshear, the judge. In fact, the judge qualified his the regular judge, had raised a company for bill by stating that the defendant was not National Guard Service, and thereby became under arrest, as disclosed by the testimony a federal officer as its captain. There is al- of the witness, and that appellant himself so a contention in the motion for new trial swore that Chapman and Cartledge arrested

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

him. They were deputy sheriff and consta- [1, 2] The Assistant Attorney General, in ble, respectively, and this was some time his brief, has subdivided the provisions of the after he had made the statements to Dr. statute (Vernon's Ann. Pen. Code 1916, art. Púlly. This bill shows no reversible error. 506a), giving to each subdivision a number

Another bill was to the testimony of Nan- as follows: nie White. Her testimony is also quoted in

"(1) Any person who shall procure or attempt full in the bill. She testified to some state- to procure or be concerned in procuring, with ments made by the deceased to her which or without her consent, a female inmate for a the court admitted, it seems, either as dying

house of prostitution.

“(2) Or who, by promises, threats, violence or declarations or a res geste statement, or by any device or schemes, shall cause, induce, both.

persuade or encourage a female to become an His other bill is to the testimony of Mag- inmate of a house of prostitution, gie Mays and is gotten up in the same way. house of prostitution for a female person,

"(3) Or shall procure a place as inmate in a Her testimony was admitted by the court

"(4) Or any person who shall, by promises, both as a res gesta statement and a dying threats, violence or by any device or scheme, declaration as shown by his qualification of cause, induce, persuade or encourage an inmate tne bill. In addition to what the bill shows, such inmate,

of a house of prostitution to remain therein as the court told the jury in his charge that “(5) Or any person who shall, by fraud or arbefore they could consider the testimony of tifice, or by duress of person or goods, or by either of these witnesses they must find that abuse of any position of confidence or authority, the requisites for the admission of dying dec- an inmate of a house of ill fame, or to enter

procure any female person to become or remain larations were shown. The testimony of any place in which prostitution is encouraged or Nannie White was perhaps also a res gestä allowed in this state. statement of the deceased. At least the bill state for the purpose of prostitution, or who

"(6) Or to come into this state or leave this by no means excludes any such idea.

shall procure any female person to become an The record was sufficient to show that the inmate of a house of ill fame within this state, testimony of both of these witnesses was ad

"(7) Or to come into this state or to leave this

state for the purpose of prostitution, missible as testifying to the dying declaration

"(8) Or who shall give or agree to receive or of deceased. Neither of these bills show re- give any money or thing of value for procuring, versible error.

or attempting to procure, any female person to There is nothing else for review.

become an inmate of a house of ill fame within

this state, The judgment is affirmed.

"(9) Or to come into this state or leave this state for the purpose of prostitution, shall be guilty of pandering, and, upon conviction for

any offense under this act, shall be deemed JOINSON v. STATE. (No. 4797.) guilty of a felony and shall be punished by (Court of Criminal Appeals of Texas. Feb. 20, confinement in the penitentiary for any term of 1918.)

years, not less than five." 1. PROSTITUTION Owl PANDERING Evi- All of these subdivisions of the statute,

except subdivisions 6, 7, and 9, which relate Though defendant may have assisted a common prostitute to ply her vocation, yet, where to coming into or going out of the state, make she did so in the woods away from any place of

an element of the offense the entry of a house habitation, defendant does not fall within Ver- of prostitution or remaining in a house of non's Ann. Pen. Code 1916, art. 506a, denouncing the offense of pandering by inducing or pro- above uses the term “house of ill fame," and

Subdivision 5 as numbered

prostitution. curing a female to resort to or remain in a house of prostitution, but was within article also the term “to enter any place in which 498.

prostitution is encouraged or allowed." 2. PROSTITUTION 4-PANDERING EVI

The evidence in the case shows that Lucile Evidence held insufficient to sustain convic-Warren was a common prostitute, and that tion of pandering under Vernon's Ann. Pen. appellant accompanied her or followed her to Code 1916, art. 506a.

various places; that he had sexual inter3. PROSTITUTION 5—OFFENSES-CHARGE. course with her in a hotel in Ft. Worth and

In a prosecution for pandering in violation of Pen. Code, art. 506a, where it was doubtful at Gorman; and that he was cognizant of whether the houses involved were houses of and probably interested in her plying her prostitution or where prostitution was encour- vocation as a common prostitute, but the aged or allowed within the meaning of the law, place at which the proof shows it to have those terms should be defined in the charge.

been done with his knowledge was not at a Appeal from District Court, Eastland house of prostitution or ill fame. They stopCounty; Joe Burkett, Judge.

ped at a hotel in Gorman, and the woman on Lewis Johnson was convicted of pandering, her own initiative, as she says, made arrangeand he appeals. Reversed and remanded. ments with a man to go out in the woods in a

E. B. Hendricks, Asst. Atty. Gen., for the buggy and have sexual intercourse, and that State.

appellant and a number of others followed

them on foot, and that while appellant was MORROW, J. The conviction was for pan-present in the party she did have sexual indering, and the punishment fixed at ten years' tercourse with a number of these men. There confinement in the state penitentiary.

is no indication from the evidence that the hoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

DENCE,

DENCE.

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