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20, 1912.) CRIMINAL LAW (§ 1037*)-APPEAL AND ROR-PRESENTATION AND RESERVATION GROUNDS-REMARKS OF COUNSEL. Where, in a prosecution for crime, the court's attention was not directed to remarks of state's counsel complained of as prejudicial at the time, and no instruction was requested thereon, the propriety of the making of such statements is not presented for review.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.*]

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

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Dude Wagoner was convicted of crime, and 5. CRIMINAL LAW (§ 814*)-INSTRUCTIONS— appeals. Affirmed.

J. M. Rieger, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J. This is a companion case to that of Coggins v. State, 151 S. W. 311, this day decided, and the facts and questions are so similar we do not deem it necessary to again discuss, but merely refer, to that case. The only question presented by this record, not raised in the Coggins Case, is an objection to the remarks of state's counsel. It appears it was proven, without objection, that appellant had been convicted of swindling, and the district attorney, commenting on that fact, said, if he would "obtain property under false pretenses, he would also steal." The court states, in approving the bill, that he does not know whether the language was used or not; that, if used, his attention was not called to it at the time, and no charge was requested instructing the jury not to consider it. As the qualification renders it uncertain whether the language was used, and the court is certain that his attention was not called to it, if used, and no request was made to instruct the jury not to consider it, the matter does not present reversible error. The judgment is affirmed.

DAVIS v. STATE.

(Court of Criminal Appeals of Texas. Nov. 20, 1912.)

1. GAMING (§ 98*) — SUFFICIENCY OF EVI

DENCE.

Evidence held to sustain a finding that defendant permitted a house under his control to be used as a resort for gambling.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. $ 291-298; Dec. Dig. § 98.*] 2. GAMING (§ 76*)—"Resort FOR GAMBLING." Where a person opens a house under his control and permits persons to gather there and gamble without invitation, it becomes a "resort for gambling."

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 202, 203; Dec. Dig. § 76.*

For other definitions, see Words and Phrases, vol. 7, p. 6174.]

EVIDENCE.

dence was properly refused. An instruction not called for by the evi

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]

6. GAMING (8 94*)-EVIDENCE-ISSUES.

In a trial for permitting gambling on premises under defendant's control, evidence that one night shortly before the grand jury met he requested that gambling stop did not present the issue that the gambling took place without bis consent, where it appeared that he engaged in the games on all prior occasions.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 274-283; Dec. Dig. § 94.*] 7. CRIMINAL Law (§ 717*)-TRIAL-CONDUCT OF COUNSEL-DISCRETION.

mitted to read cases and discuss law to the Whether the state's counsel shall be pertrial court is within the court's sound discretion.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1682-1687; Dec. Dig. § 717.*]

8. CRIMINAL LAW (§ 1169*)-HARMLESS ERROR-ADMISSION OF EVIDENCE-VERDICT.

permitting a witness to testify that he had In a trial for permitting gambling, error in never known defendant to work, and had frequently seen him in a pool hall, was harmless. where the jury assessed the minimum punish

ment.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3088, 3137-3143; Dec. Dig. § 1169.*]

9. GAMING (§§ 88, 89*)-INDICTMENT-SUFFI

CIENCY.

An indictment for violating Pen. Code 1911, art. 559, by permitting property under the defendant's control to be used as a resort for gambling, need not describe the premises, further than to say that it was a house under defendant's control, or allege that the house was a public place, or name the games played therein.

[Ed. Note. For other cases, see Gaming, Cent. Dig. §§ 241-243, 244-248; Dec. Dig. 88 88, 89.*] 10. INDICTMENT 87*)-SUFFICIENCY.

AND INFORMATION (§§ 86,

An indictment alleging that defendant, on or about a certain day, in C. county, in the state, did then and there permit property under his control, to wit, one house in C., to be used as a resort for gambling sufficiently alleged the

date, and that the offense was committed in C. shows that appellant permitted a house uncounty. der his control to be used as a resort for

[Ed. Note. For other cases, see Indictment gambling. He knew the gambling was tak and Information, Cent. Dig. 88 230-243, 244-ing place, engaged in the games a portion 255; Dec. Dig. §§ 86, 87.*] of the time, and it is shown that while Mr.

Appeal from District Court, Comanche Fitch and his wife were absent that on at County; J. H. Arnold, Judge.

M. H. Davis was convicted of permitting property under his control to be used as a gambling resort, and he appeals. Affirmed. Smith & Palmer, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was prosecuted under an indictment containing several counts, and convicted under the fifth count, in which he was charged with unlawfully and knowingly permitting property which was under his control, a house situate in Comanche, to be used as a place for people to resort to bet and wager upon certain games played with dice and cards.

least five occasions the witnesses gathered there and gambled with his knowledge. The boys say they just "went there" knowing that they could gamble there. When a permits people to gather there and gamble withson opens a house under his control and perout invitation (for he testifies he invited none of them), it becomes, in law, what is termed a common resort for gambling. The fact that it was the residence of Mr. Fitch does not alter the fact that as soon as Mr. Fitch left he permitted it to become a resort for the boys to gather and gamble, and the testimony would support the verdict.

[3] There was no error in the court refusing to quash the indictment, on the ground that it did not negative the fact that it was a private residence, or allege [1] G. W. Fitch testified that his family that it was a private residence commonconsisted of himself and wife, and that de- ly resorted to for gambling. For the time fendant had been staying with him; that being, it was not a private residence occuhe and his wife took a trip to East Texas, pied by a family, but appellant, an unmarand were absent some 13 or 14 days; that ried man, was staying there by permission appellant continued to stay at his residence at least. It would be immaterial whether while he was absent. No one else stayed he was in possession by permission, or had there, except appellant, while Mr. Fitch and taken possession during Mr. Fitch's absence, his wife were absent. This would show that believing that it would be agreeable with the appellant was in control of the premises owner. If one should in any manner, while during that time, and the facts show that the family was absent, take possession of he was an unmarried man. During that a house and permit gambling to be engaged time a number of witnesses testified that in by all those who came to the house while they went to this house and gambled there on several occasions, some saying they played poker, and others testified they threw dice. It is also shown that appellant played in part of the games and gambled with the others. Leslie Stewart testifies he played at this house, during the absence of Mr. Fitch, Thursday and Friday nights, and that six others were there and engaged in the

games.

John Rhoads testifies he was there on occasions while Mr. Fitch was absent when gambling took place, twice in the daytime and three times at night, engaging in gambling, both with cards and dice; that he had gone to this place with appellant on one occasion, and on other occasions went with others. Frank Keeter testified he went to this house and gambled; that appellant was not there when he got there the first night, but came shortly afterwards; that on the second occasion appellant gambled with him and others; that on another occasion appellant and he gambled alone at the house no one else being present. Joe Hulsey testified he had gambled at this house on two occasions, shooting craps on one occasion and playing cards on the other.

he was in control of the house, and when it was shown that on five occasions during this time he permitted gambling to be carried on in the house, it would be an offense against the law.

[4] The court did not err in refusing the special charge requested by defendant, as it is shown that on more than one occasion he engaged in gambling with the others, and this, in law, would be construed to be permission for the others to gamble.

[5] There was no evidence upon which to base the second charge requested by defendant; and it is never improper to refuse a charge not called for by the evidence. Neither was there any evidence suggesting that the persons who gambled "were guests at the defendant's house, engaged in gaming for pleasure"; consequently the court did not err in refusing the special charge presenting this issue.

[6] Special charges Nos. 4 and 5 were covered by the main charge of the court, in so far as they presented the law of the case. The fact that one night just before the grand jury met the appellant requested them to stop gambling on that occasion would not present the issue that the gambling took [2] This testimony, we think, sufficiently place without his consent, when it is shown

that he engaged in the games with the others | 2. CRIMINAL LAW (8489*)-EXPERT TESTIon all prior occasions. MONY-CROSS-EXAMINATION.

[7] The question of whether or not the state's counsel shall be permitted to read cases and discuss the law to the court is one within the sound discretion of the court The qualification of the bill shows that no authorities were read to the jury, but all were read to the court prior to the preparation of his charge. As thus qualified, the bill presents no error.

[8] The defendant complains that a witness was permitted to testify that he had never known defendant to do any work, and had seen him in the pool hall a number of times. This testimony was inadmissible; but, inasmuch as the jury only gave appellant the minimum punishment fixed by law to this offense, it does not present such error as should cause a reversal of the case.

[9] The grounds of the motion in arrest of judgment should not have been sustained. Under article 559 of the Penal Code it was not necessary to describe the premises in which it was alleged the gaming took place, further than to say it was a house under his control. It was not necessary to allege that it was a house for retailing spirituous liquor, or other public place, under the article of the Code under which this prosecution was brought.

[10] The indictment alleges that "on or about the 13th day of October, 1911, in the county of Comanche and state of Texas, appellant did then and there unlawfully and knowingly permit property which was under his control, to wit, a house situate in Comanche, to be used as a place for people to resort to bet and wager upon certain games played with cards and dice." This sufficiently alleged the date, and that the offense was committed in Comanche county; and it was not necessary to name the games played with

the dice and cards.

The judgment is affirmed.

DRAKE v. STATE.

(Court of Criminal Appeals of Texas. Nov. 6, 1912. Rehearing Denied Dec. 4, 1912.)

1. CRIMINAL LAW (736*)-CONFESSION ADMISSIBILITY.

Where a confession, signed by accused, stated that he made same to the county attorney freely and voluntarily, after having been warned that he did not have to make it, and that it could be used against him, it was not inadmissible, under the statute relating to the admissibility of confessions, though accused's testimony raised the issue that it was not freely and voluntarily made, and that he was not aware of its contents; such issue being for the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1219, 1220, 1701, 1702, 1705, 1716; Dec. Dig. § 736.*]

fied, on cross-examination by accused, that the Where, in an incest case, a doctor testihymen would have been injured by penetration beyond a certain depth, it was not improper for the state to adduce, on redirect examination, that there were cases of women being impregnated without destroying the hymen.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1078; Dec. Dig. § 489.*] 3. CRIMINAL LAW (§ 338*)-EVIDENCE-MA

TERIALITY.

cest case, that she had stopped visiting at acTestimony of accused's witness in an incused's home because she believed a third party and accused's wife were criminally intimate, was properly excluded, where neither the wife nor the third party were used as witnesses, especially where other witnesses were permitted to state all facts showing such criminal intimacy.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 752-757, 787, 788, 801, 855; Dec. Dig. 338.*]

4. CRIMINAL LAW (§ 655*) - CONDUCT OF COUNSEL ADMONITION BY COURT.

Where counsel for accused sought by certain remarks to get excluded evidence before in the jury's presence, that counsel's statethe jury, it was proper for the court to state, ment was improper, and he must not again make such statements.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.*] 5. INCEST ( 13*)—ADMISSION OF EVIDENCE.

In an incest case the court properly excluded testimony as to what police and detectives told the prosecutrix and her mother when the complaint was made.

[Ed. Note. For other cases, see Incest, Cent. Dig. § 11; Dec. Dig. § 13.*] 6. CRIMINAL LAW (§ 675*) - CUMULATIVE

CHARACTER EVIDENCE.

Where some dozen witnesses testified to that his reputation as a law-abiding citizen was accused's reputation, and the state admitted good, it was not error to refuse to permit other witnesses to testify to the same fact.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 850, 1607; Dec. Dig. § 675.*]

7. CRIMINAL LAW (§ 824*)-INSTRUCTION— DEFINING TERMS.

Failure of the court to define the words "carnal knowledge" and "carnally know," as used in an instruction in an incest case, was not error, in the absence of a request therefor; such words having a plain, well-understood meaning.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1996-2004, Dec. Dig. i 824.*]

8. INCEST (§ 6*)-NATURE OF OFFense. The depth of the penetration is not material to the crime of incest, where there is an emission.

[Ed. Note.-For other cases, see Incest, Cent. Dig. 5; Dec. Dig. § 6.*] 9. CRIMINAL LAW (§ 945*) GROUNDS.

NEW TRIAL

an incest trial to making an examination of the The fact that a doctor, after testifying in person and clothing of prosecutrix, in which he discovered a certain state of facts, subsequently testified at the hearing on a motion for new trial that he made another examination after accused's conviction and discovered a dif ferent state of facts, did not present ground

for a new trial, where there was no evidence | an inch, I am sure. I withdrew my penis to that the conditions discovered at the later ex- keep from making a discharge in her, and amination existed at the time of the former ex

amination, especially where the facts discov- discharged between her legs. Just before I ered at the former examination were corrobo- got through, she complained of it hurting her. rated by other testimony and accused's con- That is the only time I ever had anything fession, made shortly after the alleged occur- to do with her. My wife is delicate to such an extent that I am unable to gratify my passion with her, and I just let my passion get the best of me. [Signed] T. Drake."

rence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. § 945.*]

10. CRIMINAL LAW (§ 1099*)-APPEAL AND ERROR-MOTION FOR NEW TRIAL-REVIEW OF GROUND.

a

Where the testimony relied upon as ground for a new trial in an incest case was not filed until after adjournment of the term of court at which the accused was convicted, such ground could not be reviewed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. 8 1099.*]

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

T. Drake was convicted of incest, and he appeals. Affirmed.

Poulter & Johnson and Mays & Mays, all of Ft. Worth, for appellant. C. E. Lane, Asst.

Atty Gen., for the State.

HARPER, J. Appellant was prosecuted and convicted of the offense of having sexual intercourse with his daughter.

[1] The state introduced the following confession of defendant: "My name is T. Drake. I make the following statement to the county attorney, John W. Baskin, freely and voluntarily, and after having been warned by him, the said John W. Baskin, first, that I do not have to make any statement at all, and, second, if I do make any statement, such statement can be used in evidence against me in my trial for the offense concerning which the statement is made, and cannot be used for me. I am 42 years of age. I have been living in Ft. Worth for six years. I am a car repairer on the Rock Island Railroad. I have four children. My oldest daughter's name is Eva Drake, and she is 15 years of

age.

Last night, to wit, the 11th day of August, 1911, about 8 or 9 o'clock, I was sitting on my front steps, and Eva came out and sat down by me. My wife was at a lodge meeting. She (Eva) began picking at me and teasing me, and I began picking at her and teasing her. My passion then got the best of my judgment. I got up and went out back toward the barn. Eva followed me. When we got back there, I threw my arm around her and drew her up to me. I then reached down and unbuttoned her drawers and let them drop down. I then told Eva to lay down on the ground, which she did. I then got down on her with my penis out. I spit on my hand and rubbed it on her private parts. I attempted to insert my penis in her private parts, but could not make the entry. I kept up the motions, and finally succeeded in inserting my penis in her private parts a short distance, not more than

Many objections were urged to the introduction of this confession, but none of them are tenable. This court has been frequently called upon to construe this statute, and the construction finally adopted is announced in Henzen v. State, 62 Tex. Cr. R. 336, 137 S. W. 1141, and this confession is in accordance with the rule there announced. While the defendant's testimony raised the issue that it was not freely and voluntarily made, and that he was not aware of the contents of the paper when he signed same, yet the court submitted that issue to the jury in his charge, and in a way that is not criticised by defendant in his motion for a new trial.

[2] In his next bill of exceptions it is shown that Dr. McElroy had testified that on the day following the alleged offense that he had examined the private parts of the prosecuting witness; that he found an inflamed condition, etc., and on her clothing a discharge that indicated intercourse with a man. On cross-examination defendant developed that her hymen was not destroyed nor punctured, and, in his opinion, that if she had been penetrated by the male organ of a man more than a given depth it would have injured the hymen. On direct examination the state developed that in the medical world it was known that there were cases where women had become impregnated without destroying the hymen. This latter testimony was objected to by defendant. As the doctor had testified, at the instance of defendant, that, in his opinion, the girl, if penetrated, had been penetrated only a given depth, and based his opinion on the fact that the hymen had not been destroyed nor injured, the testimony adduced on redirect examination was admissible as an aid to the jury in passing on the weight of the testimony of the opinion of the doctor that penetration could not have been beyond a given depth without the hymen being affected.

[3] Appellant desired to prove by a witness that she had stopped visiting at the home of defendant, because she believed that one B. M. Howard and the wife of defendant were criminally intimate. As neither the wife of defendant, nor B. M. Howard, were used as witnesses in the case, the court did not err in excluding the testimony. It further appears in the record that defendant had summoned Howard as a witness, and moved to continue the case on account of his absence; but when the attendance of Howard was secured the defendant declined to place him

"upon the witness stand. The same ruling ap- | and examining the discharge found on the plies to the excluded testimony of the witness Wentzell.

[4] When the defendant's counsel made the remarks he did in the presence of the jury, what the court said to him was not improper. He had brought about the occasion for the remark that the statement made by counsel was an improper one, and he must not make such statements again. When the court has sustained an objection to evidence, counsel should not seek to get the testimony before the jury in this way; and when he does, if the court only informs the jury that it was improper for counsel to have made such statement, he is dealing with the matter as leniently as one should expect.

It appears from the qualification of the court that he permitted the witnesses to state all facts and circumstances which would show improper relations between the wife of defendant and Howard; and this was certainly as far as defendant was entitled to go, in the absence of either of them testifying.

[5] The court properly excluded the testimony as to what the city police and detectives told the prosecuting witness and her mother on the occasion when complaint was made as to the alleged crime of defendant.

[6] Some dozen witnesses had testified to the reputation of defendant, and the state admitted that the reputation of defendant as a law-abiding citizen was good. The record being in this condition, there was no error in the court declining to permit other witnesses to testify to the same fact.

[7, 8] In his motion and in his brief defendant earnestly insists that the facts do not show that defendant had a completed act of sexual intercourse with his daughter, and the court erred in not defining the words "carnal knowledge" and "carnally know." These words have a plain, well-understood meaning, and the jury could not have been misled by their use. If defendant desired them explained, he should not have waited to complain in his motion for a new trial, but should have requested that a definition be given at the time of trial. When the meaning of words are so well understood by all mankind as are these words, if a definition of them is desired, a request must be made at the time of trial. As to the facts not showing a completed act of intercourse, the confession of defendant herein copied answers that complaint. The testimony of the daughter is also ample upon which the jury would be authorized to so find. The depth of penetration, if there is penetration, is immaterial, where there was an emission, as shown by the testimony of the daughter and the confession of the father.

[9] The only other ground in the motion alleges newly discovered testimony. Dr. Kibbie had testified on the trial to examining the

dress, and stated, in his opinion, it was an emission from the male organ, and had stated: "So far as my knowledge goes, I do not believe this spot could have been any other mixture than the discharge of the male. I do not know of any other discharge that would give me those cells. There is some difference in the discharge from a man and the discharge from a woman. I do not believe this could have been a discharge from a woman, because, in the first place, the quantity attracted my attention, and the amount of stiffness there; and, secondly, the character of cells that are thrown out from the male, which differ from the female the epithelium cells. It is almost impossible to make a practical explanation of it, because the cells in the body vary according to where they come from; but the little granules in the cells that were present in this discharge indicated to me that it was the seminal discharge of a male of some sort." After the conviction of defendant, on the hearing of the motion for a new trial, he again testified, and stated the date of the original examination was August 11th, the day after the alleged offense; that since the trial of the case, on December 2d, he again examined her, and found that at that time she was suffering from a venereal diseaseclap-and that the character of discharge from this disease might have produced the spot he found on the dress on August 11th. There is no positive testimony offered that if the girl was suffering from this character of disease in December that she was also suffering from it in the month of August prior thereto; and it seems remarkable to us that if the physician could tell in December that she was afflicted with this disease, if she had the disease in August, in his examination of her-the character and kind he says he made in August-he would not have discovered and thus diagnosed the case in August. But, be that as it may, without proof that the girl was suffering from this disease at the time of the examination in August, it does not present ground for a new trial, especially in the light of the confession of defendant, made shortly after the alleged occurrence. Our decisions all hold that the newly discovered evidence must be such that it would probably produce a different verdict; and in passing on this question we must consider the testimony adduced on the trial. Burns v. State, 12 Tex. App. 269; Hasselmeyer v. State, 6 Tex. App. 21; Wharton's Crim. Law, § 3161; Arch. Cr. Pr. & Pl. (6th Ed.) 178, § 26. In the light of the testimony and defendant's confession, testimony that this discharge could have been produced from the discharge of a female suffering with this disease would not have changed the result, and the court did not err in overruling the motion.

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