Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. sue becomes admissible, and, by filing this plea in this case, he opened the door for tes J. C. Williamson was convicted of theft, timony bearing on his reputation. In addiand he appeals. Affirmed. W. W. Nelms, of Dallas, for appellant. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of theft, and his punishment assessed at five years' confinement in the state penitentiary. All the witnesses agree that appellant, J. B. Conine, and George McCully met in a saloon in Dallas, and then took an automobile drive in an automobile belonging to Conine, going to the "Pass Time Club"; but from this time on is where the conflict occurs. Conine says that when they got to the Pass Time Club one of them said, "You are not a member of the club and cannot go in; give us a little change, and we will go in and get the beer;" that he took out his pocketbook to do so, and, the bills being on top, he took them out to get the change, and as he did so appellant grabbed the bills and ran; that there were ten $10 bills, amounting to $100, that appellant took from him on that occasion. tion to this, he introduced a number of witC. nesses who testified that his reputation for truth and veracity, for honesty, and as a peaceable, law-abiding citizen was good. On cross-examination of these witnesses some of them admitted they had heard he was charged with robbing a box car. The state also introduced a number of witnesses who testified appellant's reputation as a peaceable, law-abiding citizen was bad. When appellant took the stand and testified, among other things, he said that, while he had been charged with robbing the box car, he had not been indicted for that offense, and had never been convicted of any felony. The state on cross-examination asked him if he had not been arrested as many as a dozen times, and he answered no, but admitted that he had been arrested three or four times, and had been in the city jail two or three times. Appellant strenuously objected to the testimony that he had been arrested three or four times, and had been in jail two or three times, saying that on these occasions he was charged with misdemeanors not involving moral turpitude. As to the witnesses who testified to appellant's general reputation as a peace able, law-abiding citizen, it was certainly per missible on cross-examinaton to ask them if they had not heard of appellant being charged with violations of the law, for it has always been held that a witness testifying to general good character may be so cross-examined to test the soundness of his opinion, to elicit data upon which it was founded, to determine whether or not such opinion is well founded. Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400; Bearden v. State, 44 Tex. Cr. R. 583, 73 S. W. 17. In Holloway v. State, 45 Tex. Cr. R. 307, 77 S. W. 14 this court held: Appellant admits riding to the Pass Time Club, but says when he got there he got out and got on the street car and went to his home; that Conine had not taken out any money when he left, and he saw and took none of his money. McCully says as soon as he got out he went in the Pass Time Club, and did not see any one get Conine's money, but in a few seconds he was told about Conine losing his money. The state, to show flight, introduced evidence that the police were informed and made search for appellant, but did not succeed in locating him for some months. The theft is alleged to have taken place on April 15th, and appellant admits leaving Dallas, but says he did not do so until 28th of April, going first to Denison, then to Denver, in search of work, and there went to work for the Union Pacific Railroad. [1-3] There are but two questions raised by the record, and they both call for a construction of the acts of the last Legislature. Appellant entered a plea requesting that, in the event he was convicted, his sentence be suspended. When this plea is entered by any one on trial for a felony, section 2 of the suspended sentence act (chapter 7, Acts 33d Leg. p. 8) provides that "the court shall permit testimony" to be introduced "as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence," providing therein that, if he has theretofore been convicted of a felony, the sentence shall not be suspended. Unless a person on trial enters this plea, his reputation cannot be put in issue by the state, unless he does so; but, when he elects to avail himself of the privilege of filing this plea, then he puts his reputation in issue, and any legitimate testimony bearing on that is "Of course it was not competent for the state originally to put appellant's reputation in issue; but, he having done so, it was proper on cross-examination of his witnesses to prove by them particular acts of misconduct, or, where the proof was of general reputation on the part of appellant, that the witnesses had heard of particular acts of misconduct," citing Rice, Cr. Ev. p. 603. And this is not only the rule in this state, but it is so held in State v. Merriman, 34 S. C. 16, 12 S. E. 619; Ingram v. State, 67 Ala. 67; People v. Gordon, 103 Cal. 568, 37 Pac. 534; State v. Jerome, 33 Conn. 265; Cook v. State, 46 Fla. 20, 35 South. 665; Ozburn v. State, 87 Ga. 173, 13 S. E. 247; Smith v. State, 10 Ind. 106; State v. Arnold, 12 Iowa, 479; Newton v. Com. (Ky.) 102 S. W. 264; State v. Donelon, 45 La. Ann. 744, 12 South. 922; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A. (N. S.) 535; McCormick v. State, 66 Neb. 337, 92 N. W. 606; State v. Campbell, 20 Nev. 122, 17 Pac. 620; State v. Knapp, 45 N. H. 148; State v. Perkins, 66 N. C. 126; People v. McKane, 80 Hun, 322, 30 N. Y. Supp. 95; State v. Ogden, 39 Or. 195, | R. 434, 140 S. W. 1105), but was admissible 65 Pac. 449; People v. Hite, 8 Utah, 461, 33 as bearing on his reputation as a peaceable Pac. 254. and law-abiding citizen on his plea of suspension of sentence. The charge of the court instructed the jury: [4] Appellant presents these cases wherein appellant does not put his reputation in issue, and only takes the stand as a witness, and under such state of facts it has been correctly held that proof can only be made of offenses involving moral turpitude, or of the grade of felony, to affect his credit. But when he puts his reputation in issue as a peaceable and law-abiding citizen, and he does this in this case specifically, and in addition thereto does so by filing a plea asking a suspension of sentence, then evidence which tends to show that he is not a peaceable, law-abiding citizen may be adduced on crossexamination of his witnesses, and may be adduced even though such acts are not felonies, or do not involve moral turpitude. And when he files a plea asking a suspension of sentence, this in and of itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation is admissible in evidence. The fact that one has theretofore been convicted of a felony bars him from availing himself of the plea, but the fact that he has not before that time been convicted of a felony does not in and of itself entitle one to a suspension of sentence; it authorizes him to enter the plea, and if his reputation theretofore is shown to be such that the best interests and welfare of the state will not suffer by suspending the sentence, and is such that hope can be entertained of his reformation by extending this clemency, it may be done. But if his reputation, the life he has lived, is such there is but little or no hope of reformation, without his being compelled to undergo punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended. This, as we understand it, is the object and purpose of the law, and when one elects to file this plea asking for clemency, if found guilty, the law puts in issue his past reputation, and evidence of the character of life he has lived in the past is admissible to enable the jury to determine whether or not the clemency should be extended; and the first bill presents no error. [5, 6] However, while all the evidence objected to was admissible to enable the jury to determine whether or not they would suspend punishment for the offense committed in case they found him guilty during good behavior, it was not admissible for the purpose of affecting the credit of the defendant as a witness, for the offenses for which he had theretofore been arrested did not involve moral turpitude, and were not of the grade of a felony, except in one instance (that in which he was charged with robbing a railroad car), and in that case, after investigation, no indictment was returned, consequently this evidence adduced did not go to his cred "You are further instructed that there has been admitted before the jury evidence in recharged with other offenses besides the one set gard to defendant having been arrested and out in the indictment in this case. You are instructed that defendant is not on trial for any other offense, and cannot be convicted therefor. Such evidence was admitted before you for the purpose of enabling you to pass upon the credibility of the defendant as a witness in his own behalf, and to aid you in deciding what weight you will give his testimony as a witness in this case, and, if you consider such testimony at all, it will only be for the purpose for which it was so admitted by the court." The first part of this charge wherein he instructed the jury that such testimony could not be considered in passing on the guilt or innocence of the defendant in the case then on trial was a correct exposition of the law; but the charge was erroneous in instructing the jury that such testimony might be considered in passing on the credibility of the defendant as a witness, the offenses not involving moral turpitude, and not being of the grade of felony. Instead, the jury should have been instructed that, in case they found appellant guilty, it could only be considered in passing on whether or not they would recommend suspension of the sentence. [7] The record discloses that the charge of the court was submitted to the appellant and his counsel before being read to the jury, and no objection was made thereto as given in any respect; but after verdict appellant does except to this paragraph of the charge, and this necessarily involves a construction of article 743 of the Code of Criminal Procedure, as amended by the Acts of the ThirtyThird Legislature (chapter 138, p. 278, Sess. Acts). It was provided in that act that the charge before being read to the jury should be submitted to counsel, and they must at that time present in writing any objections to the charge, distinctly specifying each ground of objection, and, if no objection is made at that time, the case shall not be reversed because of errors in the charge, and, if such objec tions are made, we shall not reverse, unless such errors were calculated to injure the rights of defendant, or unless it appears he has not had a fair and impartial trial. Prior to the enactment of that law, errors in the charge could be pointed out after verdict in the motion for new trial, and this statute was passed to remedy that matter, and require attorneys to point out the errors in the charge before it was submitted to the jury, instead of after verdict. Under the law as it was formerly written, this court in an unbroken line of decisions held that, unless the error in the charge was complained of in the motion for new trial, we could not consider it, unless fundamental error was presented. put in force can be combined with territory 991; Sue v. State, 52 Tex. Cr. R. 122, 105 | more districts where the stock law has been S. W. 804; Reyes v. State, 55 Tex. Cr. R. 422, 117 S. W. 152; Manning v. State, 46 Tex. Cr. R. 326, 3 Ann. Cas. 867, 81 S. W. 957; Bailey v. State, 45 S. W. 708; Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Magee v. State, 43 S. W. 512; Spears v. State, 41 Tex. Cr. R. 527, 56 S. W. 347. PRECEDENT. Since the Legislature has given the civil courts exclusive jurisdiction to determine the validity of stock law elections, and taken such question from the criminal courts, the decisions of the civil courts as to such questions are binding upon the criminal courts in preference to their own previous decisions. Cent. Dig. § 311, 312; Dec. Dig. § 89.*] [Ed. Note.-For other cases, see Courts, 4. ANIMALS (§ 50*)- RUNNING AT LArge — STOCK LAWS-ELECTION-PETITION. Many other cases could be cited showing that article 743 (old Code, 723) had received a settled construction prior to its amendment 1913, and that is, unless the error in the charge was complained of in the motion for new trial, and if it was presented for the first time in this court, we would not be authorized to reverse the case. With this construction before them, the Legislature delibWhere a petition to the commissioners' erately, in amending the article, struck out court for a stock law election was permitted to the words "or in motion for new trial," and be amended so as to include three other surrequired that all errors in the charge be ob-veys and change the number of the district, the amendments did not render the petition a new jected to at the time of the trial, and before one, so that the court could not act thereon at the charge is read to the jury, requiring that that term. the court submit his charge to counsel for that purpose. And the question is: Are we authorized to ignore this plain statutory provision of our law, because the court improperly instructed the jury they could consider the testimony for the purpose of affecting the credit of the defendant as a witness, when it was not admissible for that purpose, but for a wholly different purpose? We do not think so. If the law is wrong in thus providing, it is not for us to construe away; but application should be made to the body which enacted the law. Because the error in the charge is not in any manner complained of until after verdict, we cannot consider it under the present law any more than the court under the former law could if it had not been complained of in the motion for new trial; and it necessarily follows that the judgment must be affirmed, and it is accordingly so ordered. BISHOP v. STATE. (No. 3141.) (Court of Criminal Appeals of Texas. May 20, 1914. Rehearing Denied June 10, 1914.) 1. ANIMALS (§ 50*)-STOCK LAWS-VALIDITY. Under Const. art. 16, § 23, empowering the Legislature to pass laws for the regulation of live stock in the stock-raising portion of the state, and to exempt from such laws other portions of the state, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., a town incorporated under the general incorporation act could be included in a district for which a stock law election was had. [Ed. Note. For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.*] 2. ANIMALS (§ 50*) - RUNNING AT LARGE STOCK LAWS. [Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.*] 5. ANIMALS (§ 50*) - RUNNING AT LARGESTOCK LAWS- ELECTIONS RECORD OF RETURNS. Under Rev. St. 1911, art. 2276, requiring the commissioners' court to procure and keep in the county court clerk's office suitable books to record the proceedings of the court, the fact that the tabulated returns of a stock law election were recorded in a book in which the result of all elections were recorded, and not in the minutes of the court, did not invalidate the election, since the minutes of the court need not necessarily be kept in one book. [Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.*] 6. ANIMALS (§ 50*)-STOCK LAWS-ELECTIONS -FAILURE TO RECORD RETURNS. Though the clerk of the commissioners' court should fail to record the tabulated returns of a stock law election in the proper book, it would not invalidate the whole election, where every other essential was complied with, and there was no doubt that the election was carried. [Ed. Note. For other cases, see Animals, Cent. Dig. 88 148-157; Dec. Dig. § 50.*] Appeal from Colorado County Court; J. J. Mansfield, Judge. Mose Bishop was convicted for permitting his cow to run at large in violation of the stock law, and he appeals. Affirmed. J. C. Kindred and Grobe & Miller, all of Columbus, for appellant. A. A. Gregory, Co. Atty., and Townsend, Quin & Townsend, all of Columbus, and C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Under article 1249, P. C., appellant was prosecuted and convicted for knowingly permitting his cow to run at large after the stock law had been adopted prohibiting this. He waived a jury, and was tried before the court on an agreed statement of facts. Under Const. art. 16, § 23, empowering the Legislature to pass laws regulating live stock in the stock-raising portion of the state, and to exempt other portions, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., Shortly prior to the August term, 1913, of and the statutes passed thereunder. one or the commissioners' court of Colorado county, showing that 139 votes were cast for the law and 93 against, and 5 mutilated ballots. The said certificate and order of the county judge showing all this, was duly recorded in volume 3 of the Records of Elections in the county clerk's office of said county. In addition, the said petition for the election, the order of the court granting it and ordering the election, the order of the county judge ordering the election and causing the proper publication, reciting everything the statute requires, the further proclamation of the county judge, fully reciting all the proceedings authorizing and requiring said election, and declaring said result, and that after the requisite time it would be unlawful to permit, etc., such stock to run at large in said territory, were all duly recorded. Appellant knowingly permitted his cow to run at large within the corporate limits of Weimar after said stock law had been voted and put in effect in said district 8 in 1913. Under this state of facts appellant contested the validity of said election and claims the stock law is not in force in said district 8 on four grounds. He contends, first, that Weimar could not be included in 58 qualified voters in a certain territory of said county petitioned said court to order an election in that certain designated portion of said county specifically described by metes and bounds to determine whether or not stock-horses, mules, jacks, jennets, and cattle should be permitted to run at large in said designated territory. This territory, except three surveys, had theretofore been designated by said court as election district No. 6 of said county. The petition at first so called it, in addition to the specific boundaries composing it at that time. When said court convened at said August term it added three surveys-one league and two quite small surveys-to that election district, and changed the number thereof from 6 to 8. It then permitted the petitioners to amend their said petition so as to include said three surveys and change the number of the district from 6 to 8 therein, which they did; the court and all the petitioners consenting. The court then granted the petition, ordered the election, made all of the necessary orders, had all the proper notices issued and published and the election held strictly in accordance with the statute. Said election district, as No. 6, theretofore had embraced the territory for such election because it the city of Weimar. Weimar, long before then, had been incorporated under the General Incorporation Act, authorizing towns of 1,000 inhabitants or over to incorporate under articles 762 et seq. of our Revised Civil Statutes. As such corporation it had just such power and authority over the streets, alleys, and public grounds of the city and to regulate and prohibit stock running at large as were given by said statutes to such incorporated towns. It had passed no ordinances, and had none regulating or prohibiting stock running at large. Some considerable time before said election two respective subdivisions of said district 8 had had stock law elections, which had carried, putting said stock law in force in said two subdivisions, respectively. These two subdivisions together embraced perhaps more than half of said district 8. Neither of them embraced Weimar, or any part of it. The other portion thereof, including Weimar, had never had any stock law election embracing that territory, or any part of it. Said district 8 embraced the whole of each of said two subdivisions and said additional territory. Before this prosecution none had ever been had in either of said two subdivisions where the stock law had been carried. Said law in neither of said subdivisions had been observed or enforced. Thirty-two of said petitioners were resident freeholders of said two subdivisions. The other 26 were resi- Under these constitutional provisions the dent freeholders in that part of said district Legislature has from time to time passed 8 which theretofore had had no election, nor stock laws and authorized elections to be stock law in force. The returns of said elec- held in counties and subdivisions thereof. tion in said district 8 were properly opened, It first passed a law authorizing such electabulated, and counted by the county judge tions to be held to prohibit the small live in the presence of the persons the statute stock, hogs, sheep and goats, from running was incorporated; second, that because stock law elections had been held and the law put in force in said two subdivisions of said district 8, they could not be combined with another, wherein no election had been held and the stock law not in force therein, so as to embrace the whole territory described and designated as said district 8; third, that because said original petition was amended in the particulars shown after the term of said court had convened, it thereby became a new or original petition, and, having again been filed, after said court convened, the court had no power at that term to order said election; and, fourth, because the tabulated election returns were not recorded in the minutes of said court, but recorded only in the records of elections of said county court. Our Constitution (section 22, art. 16) is: "The Legislature shall have the power to pass such fence laws, applicable to any subdivision of the state or counties, as may be needed to meet the wants of the people." Again, section 23, art. 16, is: lation of live stock and the protection of stock 1899, p. 220, it provided for like elections to, tion embracing such territory is valid and be held to prohibit the large live stock, legal. horses, mules, jacks, jennets and cattle, from running at large. These various acts have been construed both by this and our civil courts from time to time. We have again considered and reviewed the decisions, both civil and of this court, on the points raised by appellant, as well as the authorities cited in appellant's brief herein. [1] This court in Neuvar v. State, 163 S. W. 58, expressly decided appellant's first ground against him. We have no doubt of the correctness of that decision, and that Weimar could be, as it was, embraced in said district 8, and the election was not invalid because thereof. [2] We also think it clear, under the statute and the decisions of this court and the Supreme Court, that the two subdivisions of said district 8, in which previous stock law elections had been held and carried, could be embraced therein together with the remaining portion of said district 8 in which no stock law election had been held. Ex parte Thompkins, 47 Tex. Cr. R. 358, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63. Prior to the decision of the Thompkins Case, supra, this court had held in Ex parte Heyman, 45 Tex. Cr. R. 532, 78 S. W. 349, and other cases since then following that decision, that under section 20, art. 16, of our Constitution, requiring the Legislature to pass laws authorizing certain subdivisions of a county to hold elections to determine whether or not the sale of intoxicating liquors should be prohibited therein, one or more such subdivisions of a county wherein such election had been held and carried could not be combined with any other such subdivision, so that a valid election could be held in such combined divisions. But this court, through Judge Henderson, in Thompkins Case, supra, pointed out the distinction and difference between that section of the Constitution and those regulating stock law elections, and in effect held that the doctrine announced in the Heyman Case was inapplicable to stock law districts, and the effect of the decision and the principle announced in the Thompkins Case is that the whole of another or other districts wherein the stock law election had been carried could be combined with another, and with territory in which no election had been held, making a new district, and that an election held in such new district was valid. We have no doubt, under the stock law constitutional provisions above quoted and the statutes passed thereunder, that one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district, as [3] Besides this, since the decision in the Heyman Case, supra, and all those following it were rendered, the Legislature of this state has taken the decision of all such questions from this court and given the civil courts exclusive jurisdiction to determine the validity of any such election, under the liquor prohibition constitutional provision, by the act of 1907, passed at the first special session of the Legislature (page 447). Our Supreme Court, in Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635, and other cases, and the Court of Civil Appeals at Galveston, in the recent decision of Scurlock v. Fairchilds, 159 S. W. 1001, have held that such districts can be combined and made a new district, and that such an election held therein would not be invalid because thereof. The principles announced in those cases are exactly applicable to that question in this case, and we would follow the civil courts on such questions. The reasoning of the two decisions, just above cited, in our opinion, is unanswerable and conclusive of the question. Under the law as it now is, that question under the liquor prohibition constitutional provision cannot again come before this court, so that, the effect of the said decision in the Heyman Case, supra, and others following it, is in effect done away with. [4] The petition for the election in this case having been filed before the August term, 1913, of the commissioners' court convened, it was properly acted upon and granted and the election ordered at that term of court. The amendments thereto, made as shown above, did not render the petition a new one, so that the court could not act thereon at that term. [5, 6] The statute (R. S. art. 2276) requires the commissioners' court to cause to be procured and kept in the county clerk's office suitable books in which shall be recorded the proceedings of the court. One of these books so procured and kept in the office seems to have been a book in which the record of the result of all elections was entered, and, the tabulated returns of this election having been recorded therein, substantially complied with the law. The minutes of the commissioners' court need not necessarily be kept in any one book. Various books for the record of the various proceedings of the court may be kept. We know of no law that requires the proceedings of the commissioners' court to be recorded in any one book. Even if the tabulated returns had been omitted to be entered in the proper book by the clerk, that certainly could not be held to invalidate the whole election and the validity of the law, when every other essential had been fully and completely complied with, and there could be no possible doubt from the orders and minutes of the court that the election was carried, as shown by the tabulated re |