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that lien continued "until paid," and such claim was not subject to the bar of the statute. Therefore the case of White V. Pingenot (Tex. Civ. App.) 90 S. W. 672, is not applicable to this case. We must look to the Constitution and statutes for the rule by which to determine the rights of the parties

to these lots. The defendants in error had no title at the institution of this suit, and therefore were not proper parties thereto; but the judgment bound them, as well as all other persons, although not served with notice. Article 52320, Rev. Civ. St. There is no advantage to them from being in possession. The fallacy in the decision of the trial court is the holding that, because defendants were holding adversely to the real owner, therefore the state could not pass to a purchaser at a tax sale superior title to that of the owner. In one sense this is correct, but in its application to the facts of this case it is not correct.

To test the defendants' position fairly, we will suppose that the 10 years' possession had elapsed before the institution of the suit and the occupants were made defendants to the suit to foreclose. If they had pleaded that the state's lien was barred by limitation, the plea could not have prevailed, or if at the sale, which was made, the state had purchased the property, and this suit had been filed in the name of the state, the plea of limitation could not have prevailed. If the state by purchasing at the sale could acquire a good title by a suit against defendants, it could recover, notwithstanding the unknown owner would be barred by 10 years' possession by the defendants. Having purchased the land, the state could have conveyed to the plaintiff a title which could not be defeated by this plea of limitation. Can it be said that the state had a right to foreclose its lien upon this land and acquire the title by sale to itself, but could not by a sale to another confer such title upon the purchaser as would be equal to the state's lien? Such a position could not be maintained, and probably would not be asserted, yet the judgment in this case expresses that illogical conclusion.

It is therefore ordered that judgment be here entered that the plaintiff in error, Patton, recover of the defendants in error the lots in controversy and all costs.

BURKE v. STATE.

knowledge of the theft first came to the owner after the theft; a general charge, merely defining the two kinds of theft from the person as provided by statute, with a general application of the law of sudden taking, being insufficient.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. § 183; Dec. Dig. § 70.*]

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Irene Burke was convicted of theft from the person, and she appeals. Reversed and remanded.

Taylor & Gallagher, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J. Appellant was charged, by indictment filed in the district court of McLennan county on the 26th day of September, 1908, with theft from the person. The indictment contained two counts; one charging theft from the person of one Adams without his knowledge or consent, and the other charging theft of the same property$65 in money-from the person of said Adams without his consent and so suddenly as not to allow time to make resistance before said property was carried away. The second count only of the indictment was submitted to the jury. On this count appellant was convicted on April 7, 1909, and her punishment assessed at confinement in the penitentiary for a term of two years.

We do not think this judgment, under the facts and evidence, ought to be allowed to stand; nor do we believe that the charge of the court properly submitted the issue to the jury; nor do we think, under any charge that could have been given on this count, a conviction could have been maintained. The evidence showed that Adams was a carpenter contractor, who lived in Waco; that about the 15th day of May, 1908, he was in Waco, near the city hall square, and between Fourth and Fifth streets, on Jackson, he saw appellant, who was facing him. He then makes the following statement: "As I passed her, she kinder rubbed up against me, and I felt something on my pocket. I immediately felt in my pocket, and my purse was in there open, and the money was gone." Further he says: "I did not see that woman get my money. I felt something push on my pocket, and I ran my hand in my pocket, and my purse was open. The purse was still in my pocket. I had one of those little leather purses, with two separate compartments in it. When I felt in my pocket, the purse

(Court of Criminal Appeals of Texas. Feb. 2, was open. I felt something push my pocket

1910.)

LARCENY (8 70*) LARCENY FROM PERSON
SUDDEN THEFT-INSTRUCTIONS.

Where the indictment charged theft from the person without the owner's consent and so suddenly that he did not have time to make resistance, it was error not to specifically charge that, even if accused stole the property from the owner's person, he could not be convicted if

against my hip was what made me think of my pocketbook. The purse was fastened with springs. No force was used to open the purse."

In the brief filed in behalf of appellant, among others, the following assignment is submitted: "The court further erred in its

failure to tell the jury in its charge specifi- | ecutor had no actual knowledge of the taking, by charging the jury upon the principles of circumstantial evidence.

cally that, even if they did believe that the defendant did steal the money from the prosecutor, Adams, described in the count in the "(6) Under our law, if the offense may be indictment submitted, they could not find committed in various modes, the party chargthe defendant guilty under the count sub-ed with its commission is entitled to have mitted, if the knowledge of the said theft the mode stated in the indictment and provcame to the prosecutor, Adams, either actual ed, and the proof must respond to the mode or circumstantial, after the offense described charged; and the charge of the court must, in the count had been committed." Under in its terms, distinctly set forth the law as this assignment, and having reference to the required by the evidence, and must submit facts of the case, appellant submits these to the jury every phase of the case made by propositions: the evidence, and must instruct the jury as to the law applicable to the theory within the scope of the indictment, which the evidence tends to establish, and a charge which fails to meet this requirement is erroneous." Elaborating these propositions, they sub

"(1) It is necessary, and the law imposes on the trial judge the duty, to inform the jury pointedly, pertinently, and specifically upon the principles of law by which they are to be governed in considering the verdict to be rendered under the charge in the indict-mit the following argument, which we bement and the evidence in the case.

"(2) When the state seeks to charge the citizen with the offense of 'theft from the person' under our statute, the indictment must set out the mode or ingredient of the offense; that is, that the offense was committed 'without the knowledge' of the person from whom the property is taken, or 'so suddenly as not to allow time to make resist ance before the property is carried away, and one or the other of these modes must be alleged, and the one alleged established by proof, and the court's charge must conform thereto.

lieve contains a correct analysis and a fair statement of the law of the case:

"In the Kerry Case, 17 Tex. App. 184 [50 Am. Rep. 122], the question of the validity of an indictment for this offense is adjudicated by this court, and it was there held that an indictment under this statute which alleges only a private stealing, without setting up the ingredients or the phase of private stealing, was not sufficient; but that in order to make a good indictment the mode or ingredient of the offense must be set out specifically. It follows, then, that the state, being required to set out the mode or manner in “(3) The mode charged in this case is that which the stealing was done, must prove the of a taking 'so suddenly as not to allow same. In the case at bar the mode set out time to make resistance,' etc. The charge being one implying knowledge of the theft of the court should inform the jury that the and resistance, or so suddenly done as not to state must under this phase show that the admit of time for resistance, the court erred owner had actual knowledge of the act of in failing to charge the jury that if the state taking, acquired at the very time the prop- failed to show knowledge on the part of Aderty was taken, and not acquired thereafter. ams that the defendant was putting her "(4) When the state charges that the prop- hands in his pocket, and knowledge that she erty is taken from the person 'so suddenly as was getting possession of the money, at the not to allow time to make resistance before very time she did so, and that having such the property is carried away,' this phase of knowledge the prosecutor did make resistthe statute implies that the person from ance, or, if he did not make resistance, that whom it is taken had actual 'knowledge' of the taking was so suddenly done, with his the taking at the time, and, when the evi- knowledge at the time, that he had no time dence raised the issue of knowledge after- to make resistance before the same was caracquired, the court is bound to submit the is-ried away, they, the jury, would find the desue in his charge, and inform the jury that, if the owner acquired the knowledge after the property went into the hands of the accused, they should acquit of this phase of sudden taking with knowledge.

“(5) Under our statute the offense of 'theft from the person' is complete when the property, alleged to have been stolen, has gone into the possession of the thief, and asportation is not necessary; and under the phase submitted to the jury in the indictment in this case, if the court had given the charge on knowledge acquired after the taking or at the time of the taking, the record shows that no conviction could have been had, for the reason that Adams himself disclaims any knowledge of the act of taking, and the court

fendant not guilty. These are the constituent elements of the offense charged in the count in the indictment submitted requiring affirmative proof, and it was material that they should be presented to the jury pointedly in the charge of the court.

"In the Files Case, 36 Tex. Cr. R. 206 [36 S. W. 93], the defendant was charged with privately stealing from the person 'without the knowledge' of the owner, and the court below charged the jury specifically that, if they believed the owner knew when the defendant put his hands in his pocket and took the pocketbook into his hands, then the defendant under said indictment should be acquitted, and if the defendant got possession of the pocketbook before the owner knew it,

taking would make no difference, the defend- | that if knowledge of the theft did not exist in ant would nevertheless be guilty; but unless the jury should find from the evidence, beyond a reasonable doubt, that the defendant did have the pocketbook in his hand before the owner knew it, they should acquit the defendant. This charge, under the indictment in that case and under the facts adduced in evidence therein, was indorsed by this court as proper, and this court says, in discussing an objection to it, that the charge 'pertinently presents the issue in the case upon the very point of taking.'

"In the Green Case, 28 Tex. App. 496 [13 S. W. 784], the defendant was charged, under the first phase of the statute, with privately taking the property without the knowledge of the owner, and upon conviction and appeal he objected that the evidence showed that the owner saw him taking the purse from his pocket. In this case the owner says: 'I felt some one touch my pocket, which contained a purse, and this attracted my attention. Looking round quickly, I saw Green's (defendant's) hand passing from my pocket to his, and saw in his hand my purse containing the money.' Now this court, under this state of facts, holds that this was a case of private stealing without the knowledge of the owner, under the phase covered by the first clause of the statute, and that the same did not constitute a sudden taking under the latter clause of said statute. In this case this court says: 'It is to be noted that, at the time Tolliver saw the defendant, he, the defendant, had already taken the purse without Tolliver's knowledge.' Now, if this was a private taking without the knowledge of the owner, it seems to us that the present case is much more so, and, owing to the fact that under the peculiar facts of our case the jury might have been, and doubtless was, left in doubt as to the principles of law governing this phase of the statute-that is, the phase of sudden taking embodied in the count submitted-and as the court below in his definition | in the charge embodied both phases of private taking, to wit, taking without the knowledge of the owner and taking suddenly with knowledge, it becomes important and material that the jury be instructed pointedly and pertinently that if the facts in the case showed that the owner, Adams, did not know of the taking at the time it was done, they should find defendant not guilty, and that a subsequent discovery of it by the owner would make no difference. The court has failed to do this in its charge.

"Under the evidence in this case, the court should have charged the jury that, in order to convict, the state must show beyond a reasonable doubt that the prosecutor, Adams, knew of the taking at the time, and that, knowing it, he resisted, or, if he did not resist, that the taking was so suddenly done as not to allow time to make resistance; and the court should have charged, as part of the

the mind of the prosecutor at the time, but came to his knowledge after the offense had been committed, they should find the defendant not guilty. Under our view of the law, as applied to the facts in this case, the court committed an error in the first place in its charge defining the offense in setting out both phases of the statute, when the jury had only to do with the second phase embodied in the second count in the indictment, and when the court was only submitting one phase, that of sudden taking; and this error is emphasized when the court falls short in his charge by failing to give the necessary ingredients going to make up the offense submitted.

"We would respectfully call the court's attention to a charge given by Judge Gustave Cook in the Flynn Case, 42 Tex. 302. It will be seen by an examination of this case that this court sets out this charge in full 'as being, in its pointed application to the facts, in contrast with a practice, which this court has condemned, of charging in the language of the Code.' In this Flynn Case Judge Cook takes up the case that he is trying, and gives a specific charge according to the evidence of that case, and we make this the basis of the two assignments of error we now have under discussion. It is true in the case at bar the lower court, in a general way, in its charge goes on to define both phases of theft from the person, and then, in a general way, goes on to make a general application of the law of sudden taking. But he never in any way in his charge gives a 'clear, concise statement of the law as applicable to the phase in the case on trial at the time.' He fails to direct the minds of the jurors to the law of the case on trial as applied to the facts in evidence in this particular case. The court will note that in the Flynn Case this court held that there was a private taking in evidence 'without the knowledge' of the owner, and we would especially call this court's attention to the fact, as stated in that case, that the owner 'felt a hand in his pocket and, turning immediately, found the defendant [Flynn] with his hand on my [his] pocketbook,' and 'Flynn had pulled it out from the bottom of his [Walsh's] pocket, but had not taken it entirely out of the pocket, it being half in, half out, of my pocket,' and 'witness asked Flynn what he was doing,' and Flynn replied, Trying to get out of the crowd.' The pocketbook never left witness' person. He did not 'grab' the man-could have done so, but did not think of it.

"Now, if this constitutes a private taking, when under the evidence it seems that the thief was almost caught in the very act itself, the one at bar, in which the owner felt something push on his pocket, and after the pushing was done the owner felt in his pocket and found his purse had been opened and the money missing, and thereafter grab

describing the occurrence, testifying himself: |The jury returned a general verdict, finding 'I did not see that woman get my money. I appellant guilty and assessing his punishfelt something push on my pocket, and I ran ment at a fine of $25. my hand in my pocket, and my purse was open'-is about as complete a case under the law of private taking without knowledge and consent of the owner as we can imagine, and the jury should most certainly have had the law given to them in the case charged applicable to the facts in evidence and the same has not been done in this case."

We adopt the statement of the matter submitted above as the opinion of the court, and for the reason that the charge of the court in the respect complained of is erroneous, and that the verdict is unsupported by the evidence, the judgment of conviction is reversed, and the cause is remanded.

WALTERS v. STATE

(Court of Criminal Appeals of Texas. Feb. 2, 1910.)

GAMING (8 77*)—"REMAINING IN A PLACE"PRIVATE DWELLING "GAMBLING HOUSE""GAMING HOUSE."

W. W. Day, a witness for the state, testified that in company with the city marshal he went to the residence of Matilda Hagan (or Brown), which is located in Athens, Henderson county, Tex. "We approached the house from the east, and after having arrived at the house we stopped in the chimney corner to see if we could hear any signs of gambling on the inside of the house. We remained there about 20 minutes, and I could hear the shuffling of cards, and I could hear voices, but could not tell what they were saying. We then went around to the front door of the house, and it was closed and bolted. I pushed the door open and went into the front room. There I found Tom Scott and Samson Johnson playing cards and betting on the game. They had cards in their hands and had money up. There were several negroes in the room looking on the game, and among them was the defendant, Joe Walters. He was sitting by the table or trunk where Samson Johnson and Tom Scott were playing." Two other witnesses swear substantially to the same facts for the state.

Under Pen. Code 1895, art. 388f, as added by Acts 30th Leg. p. 109, providing that if any person shall go into and remain in any gambling house, or shall remain in any place where proAppellant testified as follows: "I was hibited games are being played, etc., and further passing the private residence of Matilda Haproviding that by "gambling house" and "gam- gan, and she was sitting on her front galing house" is meant any place where people re-lery, and I spoke to her and began a conversort for the purpose of gaming, a person remaining in a private dwelling house, not shown to be a place frequented for the purpose of gaming, while a prohibited game was being played therein, is guilty of no offense, since "remaining in a place," etc., means in a place where gaming is being conducted in a sense continuously.

[Ed. Note.-For other cases, see Gaming, Dec. Dig. § 77.*

For other definitions, see Words and Phrases, vol. 4, pp. 3032, 3033.]

Appeal from Henderson County Court; John S. Prince, Judge.

Joe Walters was convicted of remaining in a gambling house, and he appeals. Reversed

and remanded.

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sation. I then asked her if she had any water, and she answered there was some in the kitchen, and she and I went around the house and entered the rear door of the kitchen. We talked four or five minutes in the kitchen, then I went to the water bucket, which was in the kitchen, and located near the partition door, which leads into the sleeping room. There were several parties in the sleeping room, but I do not know who any of them were. I did not see Samson Johnson and Tom Scott playing cards or betting at the time named. I simply went by to get a drink of water. I remained at the gate

Miller & Royall, for appellant. F. J. Mc and front gallery about two or three minutes, Cord, Asst. Atty. Gen., for the State.

RAMSEY, J. The first count' in the information charges that appellant did unlawfully go into and remain in the house of Matilda Hagan, alias Matilda Brown, said house then and there being a gambling house, as the said Joe Walters then and there well knew, against the peace and dignity of the state. The second count charges that appellant did then and there unlawfully remain in a place, to wit, the house of Matilda Hagan, alias Matilda Brown, where a game of cards was then and there being unlawfully played at by Tom Scott and Samson Johnson, as the said Joe Walters then and there well knew, and where money was then and there being bet and wagered on said game of cards, as the said Joe Walters then and there well knew.

and I stayed in the kitchen something like four or five minutes. I did not go into the front room until Mr. Day had come into the house and called on us to throw up our hands and consider ourselves under arrest. I then went into the sleeping room in obedience to the command of the officer." The above is practically all the evidence introduced.

Among other charges given by the court was the following: "You are instructed that our statutes make it an offense for any person to remain in a place where he knows that a game of cards is being played for money, or where persons are wagering money on a game of cards, and such person, knowing of such wager, remains, and further provides that such offense shall be punished by a fine of not less than $25 nor more than $50. It is an offense for any person to bet or wa

and be provoked to breaches and violations of the law. In this case the house was a private residence. The evidence does not show it was a gaming house, in the sense in which that term is used. True, a private residence may become a gambling house, if continuously or even frequently resorted to for this purpose; but the house here is not

ger any money at any game of any character | corrupt might become a menace to society, that can be played with cards, without reference to where such game is played, or whether or not such game is played at a private residence occupied by a family." Then the court proceeded to apply the principles of the law above stated to the facts of this case. Appellant asked the court to give the following charge, which was refused: "If you believe from the evidence that the play-made to appear by the evidence to be such a ing occurred in a private residence occupied by a family, article 388f does not apply, and your verdict will be not guilty."

place. It was not intended, we think, by the Legislature to make it an offense for one who either as a guest, visitor, or inmate of a house failed to flee from same as from a scourge, because without his knowledge and probably without his consent other inmates or persons were for the time being engaged in gaming. The whole tenor of the act above quoted manifestly bears this construction.

As presented, we do not think the facts make out a case, and the court should, under the evidence, have given the instructions requested by appellant to return a verdict in his favor.

For the error pointed out, the judgment is reversed, and the cause is remanded.

McCORD, J., not sitting.

In this connection it should be stated that the prosecution in this case was under article 388f (Acts 30th Leg. p. 109), which article reads as follows: "If any person shall go into or remain in any gambling house, knowing the same to be such, or shall remain in any place where any of the games prohibited by this act are within his knowledge being played, dealt or exhibited, he shall be punished by a fine of not less than twenty-five nor more than fifty dollars. Gambling house and gaming house, as used in this act, is meant any place where people resort for the purpose of gaming, betting or wagering." In the cases of Singleton v. State, 53 Tex. Cr. R. 625, 111 S. W. 736, and Purvis v. State, 52 Tex. Cr. R. 342, 107 S. W. 55, we held it to be an offense under the law for one to wager at a game of cards at any time or place in this state. In the case of Hanks v. State, 54 Tex. Cr. R. 1, 111 S. W. 402, 17 L. R. A. (N. S.) 1210, we held that where the (Court of Criminal Appeals of Texas. Feb. 2, evidence showed that the defendant and others were playing cards on a blanket in a shed room to a barn, while a dance was go-. ing on, but did not show that the defendant owned the house, or had leased it, or that there was any equipment showing the same to be a gambling establishment, or that any one else had played any game at this place, either before or since the occurrence of the act relied on for conviction, this did not constitute in law the keeping or exhibiting of any of the games referred to or named in the statute.

We think that from the language of the act above referred to, "If any person shall go into or remain in any gambling house, or remain in any place where any of the games prohibited by this act are within his knowledge being played," taken in connection with the language "gambling house and gaming house," is meant any place where people resort for the purpose of gaming, betting, or wagering, and that it was intended to make it an offense for persons to frequent gambling halls where people resorted, and where the same are conducted, in a sense, continuously. The evils the Legislature had in mind were no doubt to prevent patronage and frequenting of such places by persons who might be tempted into evil conduct, or where in such centers of vice the idle, the vicious, and the

CLARK v. STATE.

1910.)

1. BURGLARY (§ 28*) — INDICTMENT-PROOF-
VARIANCE OWNERSHIP OF PROPERTY
""THEFT."

Under Pen. Code 1895, art. 862, providing that it is not necessary, to constitute "theft," that possession and ownership of the property be in the same person, and that one has possession who exercises actual care, control, and management of the property, whether lawfully or not, an allegation, in an indictment for breaking and entering a house with intent to take personalty, that such property belonged to a certain person, was supported by proof that he had the exclusive care, control, and management of the property. [Ed. Note.-For other cases, see Burglary,

Cent. Dig. $$ 76, 77; Dec. Dig. § 28.*

vol. 8, pp. 6938, 6939.]
For other definitions, see Words and Phrases,

2. BURGLARY (§ 7*)—PROSECUTIONS-INSTRUC

TIONS-OWNERSHIP OF PROPERTY.

In a prosecution for forcibly breaking and entering another's house in the night and taking son alleged to own the house had possession, property therefrom, it is sufficient that the percharge, and control thereof and jointly owned it with another; it not being essential that he have the exclusive possession and control of the house. Cent. Dig. § 19; Dec. Dig. § 7.*1 [Ed. Note.-For other cases, see Burglary, 3. CRIMINAL LAW (§ 1090*)-APPEAL-BILL OF

EXCEPTIONS-NECESSITY.

Error in not permitting accused to ask certain questions on cross-examination cannot be considered on appeal, in absence of a bill of exceptions.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2816; Dec. Dig. § 1090.*]

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