bilities arising upon the evidence, and to so declare and administer the law as to allow of the least opportunity to commit what are termed by the policies mere legal frauds.

It is a well-settled principle that in making a general assignment for the benefit of creditors one cannot reserve a benefit to himself. It is, of course, a principle that he cannot do in secret an act which counteracts or contradicts what is said in the written assign- | ment. Regarding the whole plan as a single transaction, so far as the assignors and their privies are concerned, and as constituting an attempt to make a general assignment for the benefit of creditors, and that plaintiffs at the time of suing out their attachment could reasonably so regard it, what is there in the assignment of the insurance policies but to make a species of preferences, contrary to the stipulations in the deed of general assignment. It was nothing more nor less than a plan to have the beneficiaries by name in the assignment of the insurance policies empowered to collect the insurance money for the use of the assignors. That is the effect of it, and the plan was carried into effect as to Harry W. Kirby's part. It may be conceded, and we are inclined to think from the evidence that such was the case, that the defendants acted in what they thought to be the best of good faith in this matter; but the law puts a different construction upon their acts, in this: there was no mistake or misapprehension of facts, but only of the law, and that cannot excuse. There are indications that the whole case of the defendants is not contained in the transcript. But of this we cannot say. For the reason stated in the foregoing, the judgment is reversed, and the cause remanded for a new trial.

WOOD, J., not participating.

Ex parte KRUG.

BROOKS, J. This is an appeal from habeas corpus proceeding. The record shows that relator applied to J. L. Camp, judge of the Forty-Fifth judicial district of Texas, for the writ of habeas corpus, the application being based upon substantially the following facts: Relator introduced an affidavit made before Joseph J. Sweeney, justice of the peace of precinct No. 1 of Bexar county, alleging that relator, on or about the 10th day of October, 1900, in the state of Chihuahua, republic of Mexico, did fraudulently take and embezzle from the Wells-Fargo Company the sum of $10,000 Mexican money. Relator also introduced the warrant issued to the sheriff of Bexar county, commanding him to arrest relator for embezzlement over $50. The statement of facts also shows an affidavit duly sworn to before said justice of the peace, charging that relator, "on or about the 10th day of October, 1900, in the state of Chihuahua, republic of Mexico, the said J. Krug being then and there an agent of an incorporated company, to wit, Wells, Fargo & Company Express, at the city of Escalon, in the republic of Mexico, and the said J. Krug, as such agent, did then and there, in said republic of Mexico, unlawfully, fraudulently embezzle and fraudulently misapply and convert to his own use, without the consent of said incorporated company, certain lawful Mexican money then and there being the corporeal personal property of and belonging to said incorporated company, and of the value of $10,000 in lawful Mexican money, and of the value of $5,000 in lawful money of the United States, which said money had heretofore come into the possession and was under the care of said J. Krug by virtue of his said agency; and which said acts of the said J. Krug were, by the laws of the state of Chihuahua and the republic of Mexico then and there in force, the offense of embezzlement, and which said acts, if the same had been committed in the state of Texas, would then and there have been embezzlement; and the said J. Krug did afterwards unlawfully, to wit, on or about the 15th day of October, 1900, bring

1900.)

HABEAS CORPUS-PRELIMINARY EXAMINA

TION UNDECIDED.

An application for a writ of habeas corpus pending the result of relator's preliminary examination on a criminal charge was properly refused, in the absence of any showing of unreasonable delay by the examining magistrate in rendering a decision.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Application by John Krug for writ of habeas corpus. From an order denying the writ, relator appeals. Affirmed. The application for the writ was made pending the result of the preliminary examination of relator before another magistrate on a charge of embezzlement.

Paschal & Ryan, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

and the county of Bexar, said money being bills of different denominations, and known as the 'state of Nuevo Leon bills paper money,' contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the state." Then follows a warrant issued to the sheriff by said justice of the peace charging the offense in substance as set up in the last affidavit. The district judge, after hearing the case, remanded relator to the custody of the sheriff of Bexar county.

In Ex parte McCorkle, 29 Tex. App. 20, 13 S. W. 991, we held that the magistrate who issued the warrant of arrest had jurisdiction as an examining court to inquire into the offense charged in the complaint, and it was not proper, and not in contemplation of the law, that another court or judge should de

feat or interfere with that Jurisdiction. Until the magistrate has, after examination, refused to discharge the accused, the remedy by writ of habeas corpus is not available, citing Robertson v. State, 36 Tex. 346; Church, Hab. Corp. § 90; Ex parte Kittrel, 20 Ark. 499. As we understand this decision, we think it is in direct point, and decides the question here at issue. Appellant, however, insists that the decision referred to is not applicable to the facts here, because there was undue delay on the part of the justice of the peace in holding the examining trial. We would not be understood as holding that, if the affidavit is filed in any nisi prius court, the court could take its utmost time and leisure in hearing the habeas corpus trial. To so hold would be practically depriving appellant of the writ of habeas corpus. In this case, however, there is no evidence of any unreasonable delay, as indicated in appellant's brief, and hence we do not see fit to interfere on this account. The court having obtained jurisdiction to hear the matter, the trial court did not err in remanding appellant. We therefore affirm this case.

HAMILTON v. STATE.

(Court of Criminal Appeals of Texas. Nov. 28,

1900.)

DISORDERLY HOUSE-OWNERSHIP-EVIDENCE -SUFFICIENCY-CRIMINAL LAW-BILL OF EXCEPTIONS CONTENTS-EVIDENCE- ASSESSMENT BLANKS-ADMISSIBILITY-WITNESSES

ARGUMENT

-DEFENDANT -RECALLING READING LAW-GROUND FOR NEW TRIAL. 1. In a prosecution for keeping a disorderly house, it was not error to admit the testimony of the assessor of taxes that defendant rendered the property to him, alleged to be kept as a disorderly house, as hers, to prove her ownership.

2. A bill of exceptions to introduction of an assessment blank in evidence which was attached to the bill, but which does not show that the blank was admitted in evidence, is not a good bill.

3. Where, in a prosecution for keeping a disorderly house, the assessment blank of defendant's property was offered in evidence to prove ownership in defendant, the fact that such assessment was not officially signed as required by law would not render it inadmissible in connection with the testimony of the officer taking the assessment, who identified it as defendant's original assessment, which he took in person, and, by mistake or oversight, failed to have signed and sworn to.

4. In a prosecution for keeping a disorderly house, it was not error to permit a witness to testify that in 1897 he took an acknowledgment of a deed conveying the property to defendant, to prove her ownership..

5. Where, in a prosecution for keeping a disorderly house, defendant had been introduced as a witness in her own behalf, it was not error for the court to recall her after she had been examined and cross-examined, and prove by her that a deed of the property had been made to her, since, having been introduced as a witness in her own behalf, she was a witness for all purposes, and could be treated as any other witness.

6. Where, in a prosecution for keeping a disorderly house, the bill of exceptions to the admission of testimony of defendant that a deed

of the property had been made to her, on the ground that such testimony was not the best evidence, but the deed itself was the best evidence, does not show that in connection with defendant's testimony a deed was not introduced, nor state that she had not been served with notice to produce said deed, it will not be presumed that she was not given reasonable notice to produce it; it being, presumably, in her possession.

7. In a prosecution for keeping a disorderly house, during the argument of a point, in which counsel sought to read an authority, the remark of the court that a person might be convicted as the owner of a disorderly house without being the absolute owner of the property did not furnish ground for reversal; it not appearing that it could have injured defendant in connection with the decision, since the reading of law to the court is a matter greatly within its discretion, and, unless abuse or injury is shown, is not ground for reversal.

8. In a prosecution for keeping a disorderly house, defendant testified that she was the owner of the house during a part of the time covered by the indictment. It also appeared that she was engaged in running the house, or concerned in running it, as a tenant or lessee, as she carried the keys, pointed out disorderly visitors to the officers for arrest, and stayed there for long periods of time, during which she seemed to be the boss. Held sufficient to sustain a conviction.

Appeal from Ellis county court; J. E. Lancaster, Judge.

Lillie Hamilton was convicted of keeping a disorderly house, and appeals. Affirmed. Fears & Whipple, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of violating the statute prohibiting the keeping of a disorderly house, and her punishment assessed at a fine of $200, and she prosecutes this appeal.

Appellant, by her bill of exceptions, calls in question the action of the court in admitting testimony of the assessor of taxes to the effect that appellant rendered the property in 1899, alleged to be kept as a disorderly house, as hers. This was objected to on the ground that it was not the best evidence to prove ownership, and the state had made no effort to obtain the best evidence. Appellant does not suggest by the bill what she would consider the best evidence. In our opinion, it was admissible testimony, as tending to show ownership on the part of appellant of the property in question. Here the officer himself testified to the fact of the rendition for taxes by appellant herself of the property in question as made to him, and it occurs to us that this was original testimony. The same observations apply with reference to appellant's second bill of exceptions, as to the admission of testimony of Crocker and Jennings.

The third bill is to the evidence of J. P. Kennedy, deputy tax assessor. In connection with this bill it shows that the assessment blank, etc., which was for the assessment of 1898, was tendered. We find an assessment blank attached to said bill, but the bill does not show that this blank was admitted in evidence. This should have been

shown, to constitute it a good bill. However, objection is urged to this,-that it was not the best evidence to prove ownership, and because said assessment was not officially signed as required by law. The fact that said assessment was not signed would be no reason why the same was not admissible, in connection with the testimony of the officer who took the assessment, if he identified the same as the original assessment of appellant, and that he took said assessment in person, and that by a mistake or oversight he failed to have the same signed and sworn to.

Appellant's fourth bill is to the action of the court with reference to the witness C. C. Crocker. It states that the state introduced the witness C. C. Crocker, and asked him if about December, 1897, he did not take the acknowledgment of a deed from Sadie Martin to defendant, conveying the property alleged to have been kept as a disorderly house. This was objected to because it was not the best evidence, and the state had made no effort to secure the best evidence. The objection was overruled, and the witness testified, in effect, that he took said acknowledgment. What appellant would require as the best evidence of this fact, we are not informed from the bill itself. We are not informed in what connection this testimony was adduced. If the deed was in evidence, and in connection with that the witness answered the question, it was unquestionably competent, and the bill does not exclude the idea that the deed was before the witness when he made the testimony.

Appellant, by her fifth and sixth bills of exception, questions the action of the court in recalling appellant, who had been previously introduced on her own behalf as a witness, and after she had been fully examined and cross-examined, and proving by her that on or about the day of December Sadie Martin made a deed of said property to her. There was no error in the action of the court in recalling appellant after she had been introduced on her own behalf as a witness. After this she was a witness for all purposes, and could be treated as any other witness. Mendez v. State, 29 Tex. App. 608, 16 S. W. 766; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Clay v. State, 40 Tex. Cr. R. 593, 51 S. W. 370. With reference to her testimony as to the execution of a deed by Sadie Martin to her, no reason is assigned in the bill why this character of testimony was admitted, except it is said that it was not the best evidence; that the deed itself would be the best evidence of its execution. The bill does not show that in connection with her testimony a deed was not introduced, nor is it stated as a ground of objection that she had not been served with notice to produce said deed. If this was an objection to the introduction of the testimony, it should have been stated in the bill. Presumably, the deed was in her possession; and we cannot presume that she was not given reasonable no

tice to produce the deed, in the absence of such a statement in the bill itself.

Appellant objected to the remark of the court, made during the progress of the argument, to the effect that a person might be convicted as the owner of a disorderly house without being the absolute owner of the property. It seems that this remark was made in connection with the controversy between the county attorney and appellant's counsel in regard to reading the decision in Flynn v. State, 35 Tex. Cr. R. 220, 32 S. W. 1041, to the court. The opinion in question, in our opinion, was authority for the remark made, and we fail to see what injury the remark could have done appellant in connection with that decision. The reading of law to the court is a matter greatly within the discretion of the court, and, unless some abuse or injury is shown, the case will not be reversed on that account.

Appellant excepted to that portion of the court's charge in defining the word "owner"; the ground of exception being that the meaning or definition given by the court was too broad, not that it was incorrect as a definition of the word "owner." It does not occur to us that this charge was too broad, or calculated to impair the rights of appellant. From appellant's own testimony, the property was hers for some time after the reconveyance by Sadie Martin to her, before she conveyed it to Loper, and the conveyance to Loper is. shown to be merely a trust or equitable title to secure him in $300; and while she was still controlling the property she appears to have made a disposition of the same to Mary Cohen. Whether this was merely colorable, it is not necessary for us to discuss.

Under our view of the testimony, the charge on circumstantial evidence was not called for.

Appellant insists that the testimony is insufficient to sustain the conviction; and she urges that, under the evidence, the only issue upon which the jury would have been authorized to convict appellant was that she was the owner of said house in fee, and that the testimony fails to show this. We do not agree to either of these contentions. We think the testimony is ample to show that she was the owner, but, outside of this, there is some testimony tending to show that she was engaged in running the house, or concerned in running same, as a tenant or lessee. Cox testified that when he was there defendant carried the keys of the premises; and, when an officer was needed, defendant would point out any disorderly visitor whom she wanted arrested, and that he took her to be the person who was running the house. To the same effect is the testimony of George Mason. He says that when Mary Cohen was there she seemed to have the management of affairs, and sometimes she would be gone, and defendant would stay there for several weeks or a month, and while there she seemed to be the boss. This testimony would in

dicate that she was concerned in running the house, if not as owner, then as a tenant or lessee of some sort. But, as stated before, the ownership was proven by appellant herself, during a part of the time covered by the indictment. There being no error in the record, the judgment is affirmed.

MCKENNON v. STATE.

(Court of Criminal Appeals of Texas. Dec. 19, 1900.)

CRIMINAL LAW - STATUTES - RETROACTIVE OPERATION-TIME OF MAKING EF

FECT-APPEALS-NOTICE.

Where defendant was convicted in a justice's court, and filed an appeal bond, but gave no notice of appeal, and the county court dismissed the appeal, and subsequent to such dismissal, and pending a hearing on appeal to the court of criminal appeals, Acts 26th Leg. p. 233, § 1, was passed, providing that, where an appeal bond has been filed in a justice's court, the appeal shall not be dismissed for defendant's failure to give notice of appeal, and section 3 making the act apply to all cases pending in county courts and courts of criminal appeal, the order dismissing the appeal in the county court must be reversed, since the appeal must be decided in accordance with the law at the time of the decision.

Davidson, P. J., dissenting.

Appeal from Ellis county court; J. C. Smith, Judge.

Ed McKennon was convicted of a crime in a justice's court, and appeals from an order of the county court dismissing his appeal from the justice's court. Reversed.

W. H. Fears, for appellant. D. W. Wilcox and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J. This is an appeal from the county court to this court of a case appealed from the justice court of Ellis county to the county court. The case was dismissed in the county court on the ground that no notice of appeal appeared to have been given in the justice court, and an appeal was prosecuted from the order of dismissal.

It is insisted by appellant that this court should reverse the case because of the enabling act of the 26th legislature. See Acts 26th Leg. p. 233. We quote so much of said act as we think necessary to a proper understanding of this case, as follows:

"Section 1. That in appeals from judgments of the justices of the peace and other inferior courts, when the appeal bond provided for in art. 889 of the Code of Criminal Procedure of the state of Texas has been filed with the justice or court trying the same, the appeal in such case shall be held to be perfected, and no appeal shall be dismissed on account of the failure of the defendant to give notice of appeal in open court; nor on account of any defect in the transcript.

"Sec. 2. All laws and parts of laws in con

flict with the provisions of this act are hereby repealed.

"Sec. 3. The provisions of this act shall apply to all cases now pending in county courts and the courts of criminal appeals."

To properly understand this question, it should be stated that appellant was tried and convicted in the justice court on the 18th of July, 1898, and appeal bond was filed on the same day, no notice of appeal being given and entered on the justice docket. On October 5, 1898, upon motion of the state, the case was dismissed in the county court on the ground that no notice of the appeal had been given in the justice court. An appeal was thence prosecuted to this court, and the transcript filed at the Dallas term, March 22, 1899. The act of the 26th legislature, above quoted, was passed on May 23, 1899, and went into effect 90 days thereafter. So we have presented for our consideration whether or not it was competent for the legislature to pass an act dispensing with a notice of appeal in the justice court, and to make that act relate to cases tried in the lower courts before the passage of the act. It will be noted in this connection that before the passage of the act in question notice of appeal in the justice court was jurisdictional, and, unless this was complied with by appellant, his appeal would be dismissed. Ball v. State, 31 Tex. Cr. R. 214, 20 S. W. 363; McDougall v. State, 32 Tex. Cr. R. 174, 22 S. W. 593. Evidently the 26th legislature, by the act in question, intended to dispense with notice of appeal in the justice court, and intended that this should apply as well to all cases pending on appeal from the justice court, though transpiring before the law took effect, as to this, happening afterwards. The language of section 3 by its express terms gives the law a retroactive effect. Now, was it competent for the legislature to do this, in the face of section 16 of the bill of rights, which, among other things, provides, "No ex post facto or retroactive law shall be made"? An examination of the cases on this subject shows that it is within the power of the legislature to pass retroactive laws which affect the remedy, provided such laws do not interfere with some vested right. On this subject we quote from Cooley, Const. Lim. p. 457, as follows: "If the thing wanting or which failed to be done, and which constitutes the defect in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute; and, if the regulation consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make same immaterial by a subsequent law." And again (page 469): "The bringing of suit vests in the party no right to a particular decision, because cases must be determined on the law as it stands;

*

*

not when the suit was brought, but when the judgment was rendered. And, if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision is rendered." The cases which hold the contrary of this doctrine on an examination will be found to have been held unconstitutional on the ground that the effect was to deprive one of the parties of some vested right. As in Wright v. Graham, 42 Ark. 140; McDaniel v. Correll, 19 III. 226; Pryor v. Downey, 50 Cal. 388; Andrews v. Beane, 15 R. I. 451, 8 Atl. 540. The latter was a case which involved the validity of an appeal bond. The bond, when taken, it appears was void, and an enabling statute attempted to give it validity by retroactive effect. The court held that this could not be done.

This, however, was a suit between parties, and the point in question involved a vested private right; and we do not believe has any application to the question here. Mr. Kent (volume 1, p. 456) says: "A retrospective statute affecting and changing vested rights is very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void. But this does not apply to a remedial statute, which may be of a retrospective nature." Tested by this rule, we are clearly of the opinion that the legislature was authorized to pass the statute in question, and make it retroactive; and this would apply notwithstanding the case was disposed of in the county court under existing law, which required the notice to be given, inasmuch as the case was still pending in this court, for such is the express provision of the statute in question. State v. Lambert, 12 Md. 195. We quote from Chief Justice Marshall in U. S. v. The Peggy, 1 Cranch, 110, 2 L. Ed. 51 (which is also quoted in the Maryland case, supra), as follows: "It is, in the general, true that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not; but if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional (and of that no doubt in the present case has been expressed), I know of no court which can contest its obligation. It is true that in mere private cases between individuals a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties; but in great national concerns, where individual rights acquired by war are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and, if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such case the

court must decide according to existing laws; and if it be necessary to set aside a judgment rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." And in this case we say no vested right is involved. The government, through its legislature, has seen fit to enlarge the remedy,—that is, the right of appeal; and, notwithstanding when the case was decided in the county court it was properly decided in accordance with the rule then in force, yet we now have a new rule, which applies to this court and to that case, over which we now have jurisdiction; and, it having been provided that notice of appeal in justice court is not necessary to invest the county court with jurisdiction, and that this shall apply to cases pending in this court, it is our opinion that the county court now has jurisdiction of the case, and the judgment of the lower court is reversed, and the cause remanded.

DAVIDSON, P. J., dissents.

COLLINS v. STATE.

(Court of Criminal Appeals of Texas. Dec. 12, 1900.)

CONSTITUTIONAL LAW-INDICTMENT -GRAND

JURY-EXCLUDING NEGROES.

A motion by a negro defendant to quash an indictment against him should have been granted where it appeared that the jury commissioners, in selecting the grand jury that found the indictment, intentionally excluded negroes therefrom, since such action was violative of the fourteenth amendment to the federal constitution, guarantying to every one the equal protection of the laws.

Appeal from district court, Harris county; A. C. Allen, Judge.

Starks Collins was convicted of manslaughter, and he appeals. Reversed.

Brockman & Kahn, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the state penitentiary.

In the view we take of this case, it is only necessary to consider one question. Appellant made a motion to quash the indictment for the following reasons: "Because he is a negro, or person of African descent, and that the jury commissioners of Harris county, Texas, who selected the persons who composed the grand jury presenting the indictment herein, selected no persons of color or of African descent, known as 'negroes,' but on the contrary they purposely excluded therefrom all persons of color, known as 'negroes,' although the said persons of color, known as 'negroes,' compose about one-third of the population of Harris county, and of the registered voters of said county, and are qualified jurors thereof, which was an un