trial by a witness who has removed from the state. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3, 1538-1548; Dec. Dig. § 662.*] 2. CRIMINAL LAW (§ 543*)—EVIDENCE AT FORMER TRIAL-PREDICATE. was a sufficient predicate to admit the testimony. Whorton v. State, 152 S. W. 1082. [3] The court gave the following charge on reasonable doubt: "The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and, in case you have a reasonable doubt as to defendant's guilt, you will acquit him and say by your verdict 'not guilty.'" This definition is in accordance [Ed. Note. For other cases, see Criminal with article 765 of the Code of Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. Procedure, and it has always been held that 543.*] It is sufficient predicate for admission of testimony of a witness, given on a former trial, that his father testifies he is in a foreign country, and that he has a letter from him stating that he is employed there. 3. CRIMINAL LAW (§ 789*) - REASONABLE DOUBT INSTRUCTIONS. Nothing further than a charge, in accordance with White's Ann. Code Cr. Proc. art. 765, that defendant is presumed innocent till his guilt is established beyond a reasonable doubt, and, in case the jury, have a reasonable doubt as to his guilt, they will acquit, need be given on the subject of reasonable doubt. [Ed Note. For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.*] 4. HOMICIDE (§ 309*)-INSTRUCTIONS-MAN SLAUGHTER. The evidence not raising the issue of manslaughter, a charge thereon need not be given. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 5. HOMICIDE (§ 164*)-EVIDENCE-SIZE AND AGE OF PARTIES. Evidence of the relative size of defendant and deceased and their respective ages is admissible; the evidence, as a whole, making this a material issue. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 318; Dec. Dig. § 164.*] Appeal from District Court, Goliad County; John M. Green, Judge. Thomas Sanchez was convicted of murder, and he appeals. Affirmed. The this charge needs no amplification or ex- [4] As shown by the testimony copied in the opinion on the former appeal, the issue of manslaughter was not raised by the testimony; therefore the court did not err in refusing the special charge relating to manslaughter, the evidence on this trial being the same, in substance, as that adduced on the former trial. The fifth special charge was not applicable to the facts in this case, and the other special charges requested were, in so far as they presented the law, given in the court's main charge. [5] There was no error in the court per mitting witnesses to testify as to the relative size of appellant and deceased and their respective ages. The testimony, as a whole, made this a material issue. The evidence fully sustains the verdict, and every issue made by the testimony was C. E. Lane, Asst. Atty. Gen., for the State. fairly submitted to the jury in the court's HARPER, J. Appellant was prosecuted for and convicted of murder in the first degree, and his punishment assessed at death. This is the second appeal in this case; the opinion on the former appeal being reported charge. The judgment is affirmed. FLETCHER v. STATE. 19, 1913.) in 149 S. W. 124. The facts are so fully (Court of Criminal Appeals of Texas. Feb. stated in the former opinion we do not deem it necessary to recite any of the testimony. [1, 2] The first bill of exceptions shows that the testimony of Cyrus Parks, given on the former trial, was reproduced, to which defendant objected on two grounds: First, that no sufficient predicate was laid; and, second, on the ground that defendant was entitled to be confronted with the witnesses against him. This latter proposition was so fully discussed in Robertson v. State, 142 S. W. 533, we do not deem it necessary to do so again. As to the first objection, the absent witness' father testified: "I know Cyrus Parks; he is my son, and is 37 years old. He is not in Texas; he is in Central America. We have a letter from him, and he wrote us what he was doing in Central America. He is employed down there." This 1. CRIMINAL LAW (§ 594*)—CONTINUANCEABSENCE OF WITNESSES. because of the absence of witnesses, the state Where, on an application for a continuance produced evidence that accused had told one of such witnesses that he was not needed and cused's knowledge, were outside the county to could go where he pleased, that others, to acwhich the subpoena was issued, and that the testimony of another witness would merely impeach that of a state's witness, the court did not abuse its discretion in denying the motion. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.*] 2. CRIMINAL LAW (§ 596*)-CONTINUANCE— IMPEACHING EVIDENCE. A continuance will not be granted to secure impeaching testimony. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1328-1330; Dec. Dig. § 596.*] 3. CRIMINAL LAW (§ 586*)—-CONTINUANCE | tell said witness "that he [appellant] would DISCRETION. Even the first continuance is not a matter of right, but is addressed to the sound discretion of the trial judge. not need him [Fields] as a witness, and he could go where he pleased;" that after this conversation Fields did leave. As to the witnesses Mrs. Ralph Rodgers, George Brocius, and O. M. Gould, the state introduced the [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig. § 586.*] 4. CRIMINAL LAW (§ 1120*)—APPEAL-PRES- testimony of J. F. Albright, L. A. Hunt, D. ENTATION OF ERRORS. The exclusion of a question cannot be reviewed where the bill of exceptions does not show the answer made, or which would have been given. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.*] 5. CRIMINAL LAW (§ 1174*)—MISCONDuct of JURY. That the jury, in considering a case, discussed the fact that accused was a professional man, and was a good party to make an example of, did not require a reversal, where the evidence showed that he was a professional man, the entire jury believed him guilty, the discussion arose only over the question of punishment, the state's evidence justified the punishment assessed, and the defense was submitted by a proper instruction. B. Jones, and E. V. Smith that none of these witnesses were in Collingsworth county at the time the subpoena was issued by appellant, and that appellant knew this fact. If appellant knew the witnesses were not in the county at the time the process was issued, this would not be diligence. The process should have been directed to the county where they then were, even though the absence may have been temporary. As to the witness Mrs. Mose Richardson, the facts stated it is expected to prove by her would only tend to impeach the testimony of Mrs. E. V. Smith, a witness for the state. A continuance will not be granted to secure impeaching testimony. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Rodgers [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; 1174.*] Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge. W. L. Fletcher was convicted of aggravated assault, and he appeals. Affirmed. R. H. Templeton, of Wellington, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was prosecuted and convicted of an aggravated assault, and his punishment assessed at a fine of $500. That appellant entered the bedroom occupied by Mrs. Eva Snodgrass, undressed, in the nighttime, is proven beyond dispute; he and Mrs. Snodgrass both testifying to that fact. He says he went by her solicitation, and that he did no act without her consent. She testified that he entered the room without her knowledge or consent, and approached the bed on which she was sleeping, and placed his hands on her person, which aroused her, when she called to others. It also appears that Mrs. Snodgrass' brother at once filed a complaint, not waiting until morning. When the case was called for trial, appellant moved to continue the case on account of the absence of five witnesses, Lester Fields, O. M. Gould, Geo. Brocius, Mrs. Rodgers, and Mrs. Mose Richardson. Appellant was arrested on the 1st day of August, and did not have process issued for any witness until the 24th day of August, 1912, returnable on the 2d day of September. Only one of the above-named witnesses was summoned, Lester Fields. Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088. A continuance, even the first, is no longer a matter of right, but is ad dressed to the sound discretion of the trial judge; and under the evidence adduced on the hearing of this motion we cannot say that the court abused his discretion in overruling the motion. [4] The only other ground in the record relates to a question propounded to the main prosecuting witness, Mrs. Eva Snodgrass, which the bill states was objected to by state's counsel. While the bill shows that the jury was retired, and the matter heard by the court, when the objection was sustained, yet it does not disclose what answer the witness made, if any, or what answer he had reason to believe she would have given, if she had answered the question. Under these circumstances there is nothing for us to review. May v. State, 25 Tex. App. 114, 7 S. W. 588; Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640. [5] This being a misdemeanor, the other questions sought to be raised in the motion for new trial cannot be considered, except the one relating to the alleged misconduct of the jury. The only misconduct alleged is that the jury, while considering the case, discussed the fact that appellant was a professional man, and "was a good party to make an example of." That he was a professional man was a fact proven in the case; therefore legitimate to be discussed. But as to him being a good party to make an example of, [1-3] The state filed a contest of the appli- this does not show that passion or prejudice cation, and showed by the testimony of L which alone would authorize a new trial. It A. Hunt and D. B. Jones that they heard a seems that the entire jury was of the opinion conversation between appellant and the wit- that appellant was guilty, and this arose ness Lester Fields, and they heard appellant over the question of the punishment to be in flicted for the offense; and if the state's the- | having received or acquired it from some ory of the case is correct the punishment as- person to the grand jurors unknown, etc. sessed is none too severe. It is true that ap- [1] The court submitted the second count, pellant would show that his acts and con- to wit, receiving and concealing stolen propduct, if his testimony is given credence, were erty. The evidence for the state shows that under the belief that his approaches would the property was worth 111⁄2 and 12 cents be acceptable. However, when charged with per pound, and, as the first witness testified, being in the lady's room that night, he first $60 or $70. The defendant testified that denied being by her bed, and then said he Mr. Applebaum bought that character of might have gotten too near her bed while he stuff in Marshall, and it was worth 5 cents was asleep, and then added he was mean and per pound; that that was the amount Mr. could not help it. He does not deny offer- Applebaum paid for that character of stuff. ing to pay her to hush the matter up. As the This is the evidence in substance on that court instructed the jury that, even though question. the defendant was guilty of undue familiarity with the person of Mrs. Snodgrass, yet, if he did so by her invitation, or had reasonable grounds to believe, and did believe, that same would not be objected to, to acquit him, and the jury find contrary to his contention, we do not feel authorized to disturb the verdict. The judgment is affirmed. WILLIAMS v. STATE. (Court of Criminal Appeals of Texas. Feb. 19, 1913.) 1. CRIMINAL LAW (§ 795*)-SUBMISSION OF ISSUES-DEGREE OF OFFENSE. In a prosecution for receiving and concealing stolen goods, it was error, in instructing that, if accused received the goods, he would be guilty of a felony, to omit to submit an issue whether the offense was a misdemeanor, where, though the evidence for the state showed that the goods were valued at more than $50, there was evidence for accused tending to show that they were of less value. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1923-1927; Dec. Dig. § 795.*] 2. INDICTMENT AND INFORMATION (184) The court charged the jury, generally, that, if they believed appellant received the 576 pounds of brass, he would be guilty, and the jury should convict and send him to the penitentiary. There is not anything further in the charge as to the value. Objection was urged that the court did not submit misdemeanor theft or the reception of property under the value of $50. This was set up in the motion for new trial, and specifically pointed out. It is unnecessary to state the grounds set up in the motion. The matters are sufficiently presented to require consideration. This contention of appellant is correct. There were two theories made by the evidencethe state's contention that the property was worth 112 and 12 cents, or $60 or $70; and that by the defendant it was worth 5 cents, and sold in the market at 5 cents. The issue was presented, and the court erred in not submitting it to the jury. For this reason the judgment must be reversed. [2] There is another question of serious moment in the case, but barely, if at all, urged in the motion for new trial. Inasmuch as the judgment must be reversed for the reasons above stated, attention is called to the fact that there is a variance between the allegations and the evidence. It is alleged in the indictment that appellant re property from some person to the grand jurors Ceived the property from some person to the unknown, and proof that witnesses, who testi- grand jurors unknown. The evidence disfied before the grand jury, knew that the prop-closes that, on the night appellant was arerty was received from a particular person. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 574; Dec. Dig. 8 184.*] Appeal from District Court, Harrison County; H. T. Lyttleton, Judge. John Williams was convicted of receiving and concealing stolen property, and he appeals. Reversed and remanded. Y. D. Harrison and Geo. J. Ryan, both of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. rested with the property in his possession, DAVIDSON, P. J. The indictment contained two counts; one charging theft of 576 pounds of scrap brass of the value of $51. The second charged appellant with receiving the same brass from some person to the grand jurors unknown, and that he did also fraudulently conceal the property, after of these officers and the statement of the defendant. Jorasco v. State, 6 Tex. App. 238, and all subsequent cases to date. ment used to get one to agree to a verdict, render it less hurtful? If such testimony was not admissible in evidence, the fact the The judgment is reversed, and the cause jury was so informed, and discussed the remanded. Where on a criminal trial the result of former trials was not in evidence, but the jury discussed the former conviction and the punishment assessed, and at least one juror agreed to a conviction because of the former convictions, the judgment would be reversed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2054, 2055; Dec. Dig. 8 857.*] 2. CRIMINAL LAW (§ 706*)-MISCONDUCT OF COUNSEL. Where on a trial for manslaughter the state's attorney had no reason to believe that he could establish a conspiracy to kill between accused and his witnesses, it was improper to ask the witnesses concerning such a conspiracy. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.*] Appeal from District Court, McLennan County; Richard I. Munroe, Judge. T. B. Clements was convicted of manslaughter and he appeals. Reversed and remanded. J. W. Taylor and J. N. Gallagher, both of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of manslaughter, and prosecutes an appeal to this court. matter after retirement, would necessarily do more harm to appellant than if admitted on the trial; for, if defendant knew that such evidence was before the jury, he might seek to have it eliminated by moving to strike it out, or asking the court to instruct the jury not to consider it. But in this character of case inadmissible evidence is used to secure a conviction, or at least one member of the jury to agree to a conviction, and this will necessarily result in its reversal. [2] In another bill it is claimed that the state asked certain questions to prejudice the jury against witnesses for defendant, the state's attorney knowing at the time that no grounds existed upon which to base such questions. If in fact the state's attorney knew he could not establish a conspiracy between the appellant and the witnesses to whom the questions were propounded, then it was improper to ask such questions. But if the attorney had any reason to believe that he could establish that the witnesses were aware of appellant's intention to kill deceased (if he had such intention before the homicide), and expected to prove that the witnesses aided and abetted appellant, such questions were not only proper, but it was his duty to seek to establish the conspiracy. On another trial the prosecuting officer can govern himself in accordance with this opinion, and he should not ask injurious and hurtful questions if he in fact knows there exists no foundation for such questions; but if he in fact thinks he can es The discovery of new testimony need not be discussed, as it will not be newly discovered on another trial. The testimony of the wife of deceased that she found a corkscrew and other articles named in the pockets of deceased was properly admitted in evidence. It was not at so remote a time as to render it inadmissible. The time that elapsed might go to its weight, but not its admissibility. [1] It appears by the affidavit of the fore-tablish a conspiracy by legitimate testimony, man of the jury that, while the jury was then the questions were proper. considering their verdict, the jury not only discussed the former conviction of defendant of this offense, but one of the jurymen even went so far as to inform the others as to the term of years assessed against the defendant; that up to this time a portion of the jury had been in favor of an acquittal, but after being informed as to the result of the former trials one who had been voting for acquittal stated that, if that was the result of the former trials, he would agree to a conviction if they would only assess his punishment at two years in the penitentiary. On the trial of the case it was in evidence that there had been former trials of this case, but the result of the former trials was not in evidence. Suppose on the trial the state had been permitted to prove that defendant on the former trials had been convicted, and had been given a number of (Court of Criminal Appeals of Texas. Feb. 19, years in the penitentiary, over the objection of defendant. Would this not have presented reversible error, and, if so, was the fact that it was not admitted in evidence on the trial, but the members of the jury informed of it after their retirement, and this argu The court only submitting the issue of manslaughter, the verdict was sufficiently definite upon which to base a judgment; but, on account of the error above pointed out, the judgment is reversed, and the cause is remanded. RAGLAND v. STATE. 1913.) 1. CRIMINAL LAW (§ 598*)-CONTINUANCE— DILIGENCE. Where accused was arrested for burglary on May 14th, indicted on May 22d, and brought to trial on June 4th, when he moved for a continuance because he had not employed coun For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes sel, and because of the absence of two witnesses, I were stolen on the night of the 13th, and that whose names he did not know, the application he was seen in possession of them within an was properly denied for lack of diligence. hour after they were stolen. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.*] 2. CRIMINAL LAW (§ 594*)-CONTINUANCEMATERIALITY OF TESTIMONY OF ABSENT WITNESSES. Accused, when arrested for burglary committed the night before, claimed to have purchased the stolen property about 20 minutes before from a large, heavy-set man. When brought to trial, he asked for a continuance because of the absence of witnesses claimed to have been present when he purchased the property. On the trial he claimed to have purchased the property from a man named Ash, whose appearance was wholly at variance with the description given, and who, at the time of the burglary and of the trial, was a fugitive from justice. The state's evidence tended to show that accused had possession of the stolen property within an hour after the burglary. Held, that the application was properly denied, since the court was justified in finding that the witnesses would not have testified that accused purchased the property. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.*] CIENCY. EVIDENCE 3. BURGLARY (§ 41*) SUFFIEvidence on a trial for burglary held conclusively to show accused's guilt. [Ed. Note. For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.*] Appeal from District Court, El Paso County; James R. Harper, Judge. Sam Ragland was convicted of burglary, and he appeals. Affirmed. Owen & Baykin, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was prosecuted and convicted of the offense of burglary, and his punishment assessed at 22 years' confinement in the penitentiary. Appellant has three bills of exception in the record, all of which relate to the same proposition, and that is that appellant was placed on trial when he had no attorney, and when he desired the attendance of two witnesses whose names he did not know. No process had been issued for the witnesses, and no diligence used. When the case was called for trial, he requested the court to postpone, stating that he had not employed counsel, but would do so in a day or two; that he had purchased the stolen articles from a man named Ash; that two men were present when he purchased them, and he did not know their names. The sole question presented is: Did the court err in refusing to give him further time in which to employ counsel, and err in refusing to give him further time in which to learn the names of the witnesses he says saw him purchase the stolen articles, and have them summoned? Whether he had attorneys on the trial of the case is not made manifest, but that he had attorneys file a motion for new trial is manifest. [1-3] Appellant was first arrested, charged with this offense, on May 14th, and had a preliminary trial, and was bound over to await the action of the grand jury. He then knew he would need an attorney, and would need these witnesses, if any one saw him buy these articles. The grand jury indicted indictment on that day. The case was called him on May 22d, and he was arrested on the for trial on June 4th, and then it was this application for a postponement was made. We do not think the bills show any sufficient diligence on the part of appellant to learn the names of the witnesses or prepare the case for trial. The evidence strongly presents the theory that he himself was the thief, and the description he gave of the man from whom he purchased the property is wholly at variance with the appearance of Ash, from whom, on the trial, he says he purchased the property. The record further discloses that Ash, at the time of the burglary and at the time of the trial, was a fugitive from justice, and clearly authorized the court to find that his testimony in regard to the purchase of the property on the night of the burglary was not probably true, and if he should secure the attendance of the absent witnesses, whose names he did not know at the time of the trial, they would not so testify. We think the case discloses a total lack of diligence on the part of appellant, and the evidence conclusively shows his guilt. The judgment is affirmed. MANLEY V. STATE. It appears from the record that R. V. Bowden's place of business was burglarized on the 13th of May, and two suit cases filled with clothing stolen; also a typewriter. Appellant was arrested next day in possession of one of the suit cases, while trying to sell some of the clothing. The other suit case was found in his room, as was also the type- (Court of Criminal Appeals of Texas. Feb. 19, writer, the typewriter being in his trunk, covered up, and the clothing had been taken out of the suit case and placed in the trunk. When first arrested, he claimed that he had purchased the suit case from a large, heavyset man about 20 minutes before his arrest. The proof shows positively that the articles 1913.) 1. WITNESSES ($ 376*) - CROSS-EXAMINATION TO IMPEACH-RIGHT TO EXPLAIN. Where defendant in a larceny case elicited bias that he once aided in an effort to cause from a witness, on cross-examination, to show defendant's certificate as a teacher to be cancel ed, the witness was properly permitted to state |