LOWE v. STATE. (No. 4810.) (Court of Criminal Appeals of Texas. March 6, 1918.)

1. JUDGES 25(2) SPECIAL JUDGES - APPOINTMENT-VALIDITY.

Where the regular judge became an officer of the National Guard, and the bar elected a special judge, and the regular judge thereafter went into the federal service, the special judge had power, under Vernon's Sayles' Ann. Civ. St. 1914, art. 1678, as to election of special judges, to continue the term already begun in spite of Const. art. 5, § 28, requiring vacancies in judgeships to be filled by the Governor, and article 16, § 17, providing that all officers shall continue their duties until their successors arc qualified, since article 16, § 12, prohibits one holding office under the United States from holding office under the state.

2. OFFICERS 55(2) HOLDING OTHER OFFICE JUDGES ENTERING MILITARY SERVICE

OF UNITED STATES-RIGHT OF ELECTION. When one accepts an incompatible office with the one he holds, he may elect which to abandon, but when a judge accepts an office in the military service of the United States, his tenure as judge ceases by direct provision of Const. art. 16, § 12. 3. JUDGES 26 JUDGES.

POWERS

DE FACTO The acts of a judge elected in the absence of the regular judge by the bar of a county are valid on the principle that he was a de facto officer, since he had possession of a legally constituted office under color of authority. 4. HOMICIDE 169(3)-EVIDENCE-ADMISSIBILITY.

In a prosecution for homicide, testimony of a prior difficulty during which accused had a knife in his hand was admissible as tending to show the state of mind of accused.

5. CRIMINAL LAW 368(1)—EVIDENCE-RES GESTE.

In a prosecution for murder, testimony of a witness as to what deceased's father said, about 60 yards from the killing, while a fight was going on, to the effect that they were killing his boy, was admissible as res gestæ. 6. CRIMINAL Law ☺~598(6)—CONTINUANCEDILIGENCE.

Where the homicide occurred in August, 1916, the indictment was returned January 5, 1917, a subpoena for an absent witness was not applied for until July 6th, and a new subpoena issued on July 24th, and returned on the 2d of August, there was no sufficient showing of diligence to warrant a continuance when the trial was called for August 1st. 7. HOMICIDE

TENT.

286(1) - INSTRUCTIONS-IN

In prosecution for homicide alleged to have been committed with a hoe and a stick of wood, since the weapon was not per se a deadly weapon, a charge that the intent to kill was not to be presumed except from the manner in which the weapon was used should have been given as required by Pen. Code 1911, art. 1147. 8. HOMICIDE 325-APPEAL AND ERROR SCOPE.

In prosecution for murder with a weapon not per se deadly, failure to charge that intent to kill could not be presumed from the use of the weapon was an omission not reviewable in the absence of specific exception, or of request for and refusal of the charge.

Appeal from District Court, San Augustine County; Garland Smith, Special Judge.

Dinke Lowe was convicted of murder, and he appeals. Affirmed.

Wm. McDonald, of San Augustine, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Appellant was convicted of murder. After verdict he raised the point that it should be set aside because of the illegality of the election of the special judge who tried the case.

It appears that the regular judge became an officer in the National Guard on the 19th day of July, 1917, and went on the payroll of the federal government as an officer in the military service August 4, 1917. It appears that on the 16th of July, 1917, at a regular term of court, they elected Hon. Garland Smith special judge, and that on August 1, 1917, while the special judge was presiding, tried. the appellant was He makes the point that the office of district judge became vacant upon the entry of the regular judge into military service, and that the tenure of the special judge depended upon the continuance in office of the regular judge, and that when the latter vacated his office his act in doing so operated to terminate the authority of the special judge.

Section 28, art. 5, of the Constitution provides that vacancies in the office of district judge shall be filled by the Governor until the next succeeding election. Section 17 of article 16 of the Constitution provides: "All officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified."

Construing this section, it has been held that a public officer could not arbitrarily divest himself of the obligation and authority to perform the duties of his office until his successor qualified, and that although he resigned, and his resignation be accepted, that notwithstanding, the provision of the Constitution mentioned would operate to continue him in office until his successor qualified.

McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S. W. 405, and cases cited; Harris' Constitution, p. 745, and cases listed. [1] It is believed, however, that when a judge of one of the courts of the state becomes an officer in the United States army that the matter of vacancy is not controlled by section 17 of article 16 of the Constitution, but is controlled by section 12 of said article which provides, in substance, that no person holding or exercising any office of profit or trust under the United States shall be eligible to hold or exercise any office of profit or trust under this state. This conclusion is supported by the decision of the Supreme Court of this state in State v. De Gress, 53 Tex. 400. Other cases bearing on the subject are Bishop v. State, 149 Ind. 223, 48 N. E. 1038, 39 L. R. A. 278, 63 Am. St. Rep. 279; Oliver v. Jersey City, 63 N. J. Law, 104, 42 Atl. 784. See, also, notes in 83 Am. Dec. 375; 12 L. R. A. 125.

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[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. has 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. Reynolds [Civ. App.] 160 S. W. 153), but that, when an officer of the state accepts an office of profit in the military service of the United States, his tenure as judge ceases by virtue of the constitutional provision contained in article 16, § 12, supra.

"Whenever, on the day appointed for a term of the district court, or at any time before the expiration of the term, or the completion of all the business of the court, the judge thereof 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 said court and conduct the business thereof, and shall have all the power and authority of the judge of said court, during such continued absence or inability, and until the completion of any business begun before such special judge."

[5] A bill asserts that the court erred in admitting evidence of a witness who claimed that on the night of the difficulty, about 60 yards from where it occurred, he met Franklin Lee running; that at the time there was a racket going on at Canton's house (the place of the homicide), and Lee seemed to be coming from there, and remarked, "Go on down there; they are killing my boy." This was objected to as hearsay.

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 subpœna 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. §§ 1881 and 1882. took place on the night of the homicide; that the subpoena was not applied for for more than six months after the indictment was nled. When he ceased to abide in the county, what efforts were made to ascertain his whereabouts in the meantime, whether the appellant knew of his departure or not, are matters upon which the application is silent, and upon which there should have been averments setting up the facts upon which appellant relied as excusing delay. Yelton v. State, 170 S. W. 318, and cases listed in Vernon's C. C. P. p. 307, note 4. [7, 8] There were no exceptions filed to the court's charge, which, with the special charges given, fairly submitted the issues with the exception of an omission to charge the law touching intent to be drawn from the use of the weapon. The weapon used was not per se a deadly weapon, and, if requested, a charge embodying the proposition that the intent to kill was not to be presumed unless from the manner in which the weapon was used such intention evidently appeared should have been given. Pen. Code, art. 1147; Vernon's C. C. P. p. 716. The failure to give such a charge was an omission which cannot be reviewed by this court in the absence of a specific exception calling the trial court's attention to the matter, filed in a timely manner or an exception to the refusal of a special charge. C. C. P. art. 737a; Crossett v. State, 168 S. W. 548; Wright v. State. 73 Tex. Cr. R. 179, 163 S. W. 976; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Frazier v. State, 62 Tex. Cr. R. 640, 138 S. W. 620; Dowling v. State, 63 Tex. Cr. R. 366, 140 S. W. 224; Vernon's C. C. P. art. 743, and cases listed on page 525.

The record shows that Franklin Lee was one of the parties engaged in the difficulty, and there is testimony that during its continuance he ran. The witness whose testimony is objected to said that when he met Lee that a fuss was going on; they were talking loud, and Lee was running. This occurred within a short distance, 50 or 60 yards, of the homicide. We think this testimony was admissible as res gestæ. Cases in point are Black v. State, 8 Tex. App. 329; Fleming v. State, 54 Tex. Cr. R. 342, 114 S. W. 383; Shumate v. State, 38 Tex. Cr. R. 266, 42 S. W. 600; Phelps v. State, 15 Tex. App. 45; Jeffries v. State, 9 Tex. App. 603; McPhail v. State, 9 Tex. App. 165.

Finding no errors presented for review, the judgment of the lower court is affirmed.

[6] Appellant made application for a continuance because of the absence of a witness by whom it was claimed proof could be made that he saw deceased at the church a short time before the difficulty, and that the deceased sought to borrow a pistol from the witness, declaring that he was going to have a reckoning with the Lowe negroes about stealing chickens the night before. The appellant contends that the trial court abused his discretion in overruling the application. It appears that the homicide took place in August, 1916; that the indictment was returned on January 5, 1917; that a subpoena 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 the witness was not found; that his resiIdence was unknown; that the date of the return is not shown but on the 24th day of July a subpoena was obtained to Cass county which was issued on the 28th day of July and returned on the 2d of August not executed because witness not found in Cass county. The case was tried on the 1st day of August, 1917. The failure to apply for a subpoena at an earlier date is not, we think, explained in a manner that would justify 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

WATSON v. STATE. (No. 4812.)
(Court of Criminal Appeals of Texas.
6, 1918.)

March

1. CRIMINAL LAW 598(6)-CONTINUANCE-
ABSENT WITNESS-DILIGENCE.
Under indictment returned January 4th,

when case was called for trial July 20th, is

suance of process for witness on June 26th did not show sufficient diligence to warrant continuance, where accused knew of the testimony and the witness' absence at an earlier date.

2. HOMICIDE 332(3) — APPEAL - QUESTION OF FACT.

DAVIDSON, P. J. Appellant was convict ed of manslaughter and allotted five years in the penitentiary.

[1] The indictment was returned on the 4th day of January, 1916. Appellant filed an application for a continuance when his case was called for trial on the 20th of July, 1917, alleging that process was issued on the 26th day of June, 1917. There is nothing in the record to show why process was not issued at an earlier date. The testimony of the absent witnesses was evidently known, and no excuse is given why process was not issued at an earlier date. On the question of diligence some reason should have been assigned why the process had not been so issued explaining or excusing the delay. The absent testimony was expected to show communicated threats of the deceased against appellant. We are of opinion that the diligence is not sufficient to require a reversal in view of this record.

[2] It is contended the evidence is not sufficient to support the verdict and judgment. We are not prepared to assent to this proposition. The state's case shows sufficient evidence to justify the jury in their conclusion as well as the refusal of the court to grant a new trial. The testimony of appellant raises the question of self-defense. There was a sharp issue on this question. The jury could have believed appellant's theory and acquitted, but they solved this matter adversely, and in view of the testimony we would not be justified in setting aside the judgment for this reason.

that Judge Blackshear ceased to be judge by virtue of his military office at the time of the trial of appellant. The facts with reference to that matter are the same in this case as in the case of Lowe v. State, 201 S. W. 986. this day decided in an opinion written by Judge Morrow, where the facts are set out and the matter discussed at some length. We are of opinion that the conclusion in that case was correctly reached, and the trial judge was authorized to try this case and finish the work of that particular term, although Judge Blackshear may have been sworn into service before the end of the term for which Judge Smith was elected special judge. It is not deemed necessary to go into the reasonings in this case as those have been given in the opinion by Judge Morrow in the

case above mentioned.

The judgment herein will therefore be affirmed.

PHILLIPS v. STATE. (No. 4827.)
(Court of Criminal Appeals of Texas. March 6,
1918.)

CRIMINAL LAW 1091(4)-APPEAL-BILL OF
EXCEPTIONS-QUALIFICATION.

to what accused said very soon after the mur-
Bill to admission of physician's testimony as
der, on ground that he was then under arrest,
qualified by judge's statement that he was not
then under arrest, and contradicted by ac-
cused's own testimony, showed no error.

Appeal from District Court, Henderson
County; John S. Prince, Judge.
Alexander Phillips was convicted of mur-
der, and he appeals. Affirmed.

E. B. Hendricks, Asst. Atty. Gen., for the
State.

PRENDERGAST, J. Upon a trial for murder, appellant was convicted, and the lowest punishment assessed.

There were no objections to the court's charge in any particular. Every issue raised by the testimony was properly submitted in the charge.

The

The only questions presented are by three bills to the admission of testimony. first was to the testimony of Dr. Pully, who testified, among other things, to some statements by the appellant to him very soon after 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 new trial it is alleged that Judge Blackshear, the regular judge, had raised a company for National Guard Service, and thereby became a federal officer as its captain. There is also a contention in the motion for new trial

objection. It was not approved as a fact by the judge. In fact, the judge qualified his bill by stating that the defendant was not under arrest, as disclosed by the testimony of the witness, and that appellant himself swore that Chapman and Cartledge arrested

[1, 2] The Assistant Attorney General, in

statute (Vernon's Ann. Pen. Code 1916, art. 506a), giving to each subdivision a number as follows:

him. They were deputy sheriff and constable, respectively, and this was some time | his brief, has subdivided the provisions of the after he had made the statements to Dr. Pully. This bill shows no reversible error. Another bill was to the testimony of Nannie White. Her testimony is also quoted in full in the bill. She testified to some statements made by the deceased to her which the court admitted, it seems, either as dying declarations or a res gestæ statement, or both.

His other bill is to the testimony of Maggie Mays and is gotten up in the same way. Her testimony was admitted by the court both as a res gestæ statement and a dying declaration as shown by his qualification of the bill. In addition to what the bill shows, the court told the jury in his charge that before they could consider the testimony of either of these witnesses they must find that the requisites for the admission of dying declarations were shown. The testimony of Nannie White was perhaps also a res geste statement of the deceased. At least the bill by no means excludes any such idea.

The record was sufficient to show that the testimony of both of these witnesses was admissible as testifying to the dying declaration of deceased. Neither of these bills show reversible error.

There is nothing else for review.
The judgment is affirmed.

JOHNSON v. STATE. (No. 4797.)

"(1) Any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution.

"(2) Or who, by promises, threats, violence or by any device or schemes, shall cause, induce, persuade or encourage a female to become an inmate of a house of prostitution,

"(3) Or shall procure a place as inmate in a house of prostitution for a female person,

"(4) Or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate such inmate, of a house of prostitution to remain therein as

"(5) Or any person who shall, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed in this state.

state for the purpose of prostitution, or who "(6) Or to come into this state or leave this shall procure any female person to become an inmate of a house of ill fame within this state, "(7) Or to come into this state or to leave this state for the purpose of prostitution,

"(8) Or who shall give or agree to receive or give any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state,

"(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 guilty of a felony and shall be punished by years, not less than five."

(Court of Criminal Appeals of Texas. Feb. 20, confinement in the penitentiary for any term of

1. PROSTITUTION

DENCE.

1918.)

1 PANDERING EVI

Though defendant may have assisted a common prostitute to ply her vocation, yet, where she did so in the woods away from any place of habitation, defendant does not fall within Vernon's Ann. Pen. Code 1916, art. 506a, denounc

ing the offense of pandering by inducing or procuring a female to resort to or remain in a house of prostitution, but was within article 498.

2. PROSTITUTION 4-PANDERING

DENCE.

EVI

Evidence held insufficient to sustain conviction of pandering under Vernon's Ann. Pen. Code 1916, art. 506a.

3. PROSTITUTION 5-OFFENSES-CHARGE.
In a prosecution for pandering in violation
of Pen. Code, art. 506a, where it was doubtful
whether the houses involved were houses of
prostitution or where prostitution was encour-
aged or allowed within the meaning of the law,
those terms should be defined in the charge.

Appeal from District Court, Eastland
County; Joe Burkett, Judge.

Lewis Johnson was convicted of pandering,
and he appeals. Reversed and remanded.
E. B. Hendricks, Asst. Atty. Gen., for the
State.

MORROW, J. The conviction was for pandering, and the punishment fixed at ten years' confinement in the state penitentiary.

All of these subdivisions of the statute, except subdivisions 6, 7, and 9, which relate to coming into or going out of the state, make an element of the offense the entry of a house of prostitution or remaining in a house of prostitution. Subdivision 5 as numbered above uses the term "house of ill fame," and also the term "to enter any place in which prostitution is encouraged or allowed."

The evidence in the case shows that Lucile Warren was a common prostitute, and that appellant accompanied her or followed her to various places; that he had sexual intercourse with her in a hotel in Ft. Worth and at Gorman; and that he was cognizant of and probably interested in her plying her vocation as a common prostitute, but the place at which the proof shows it to have been done with his knowledge was not at a house of prostitution or ill fame. They stopped at a hotel in Gorman, and the woman on her own initiative, as she says, made arrangements with a man to go out in the woods in a buggy and have sexual intercourse, and that appellant and a number of others followed them on foot, and that while appellant was present in the party she did have sexual intercourse with a number of these men. There is no indication from the evidence that the ho

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