In Stuart's Case, supra, the county attorney was present "during their deliberations, but not when voting." In each of the other cases the unauthorized person was not present during the deliberations, or when the voting took place. The indictment involved in the Stuart Case was set aside; that in the others was sustained. Haywood v. State, 61 Tex. Cr. R. 92, 134 S. ¡returned or not. Some of the witnesses say W. 218; Porter v. State, 72 Tex. Cr. R. 71, that the grand jury was in possession of evi160 S. W. 1194. None of these persons are dence upon which the indictment was found, authorized to be present while the grand jury and indicate that they were undecided and is deliberating upon the accusation, or voting entertained a difference of opinion as to on it. This is held in all the cases men- whether the indictment should be found or tioned. not; that they had under consideration the accusation against the appellant and others accused with the same offense. In the language of Mr. Webster, approved by this court, they were engaged in "the act of weighing and examining the reasons for and against a choice of measures"; were engaged in a careful discussion and reasons for and against a proposition, viz. the indictment of the accused and others. Nothing else was before them at the time so far as the evidence shows, and the whole proceeding seems to have been an effort to decide whether to find a bill of indictment or not. We cannot escape the conclusion that it was contrary to the provisions of the statutes quoted above, which have been held mandatory, and that a reversal of the judgment of the lower court for failure to sustain the motion must follow. [1] In this case some of the persons present were witnesses, some the prosecuting attorneys, and some persons who seem from the record before us to have been neither witnesses nor state's attorneys. The question is, however, whether they were present when the grand jury was “deliberating upon the accusation" against the appellant. This court in Stuart's Case approves the definition of the term "deliberating" given by Mr. Webster as follows: "The act of weighing and examining the reasons for and against a choice of measures; careful discussion of the reasons for and against a proposition." In Sims' Case, supra, this court says: record discloses the fact that some person not In Haywood's Case, supra, the court deciding whether the presence of the county attorney and his assistants was unauthorized under the facts found, referring to the Sims' Case, says: "The meaning of the two articles (426 and 570, supra) is clear, that the county attorney may be present at all times except when the grand jury is deliberating upon whether or not they will return a bill of indictment or voting on the same.' Appeal from Tom Green County Court; Chas. T. Paul, Judge. Grace Holloway was convicted of keeping a disorderly house, and she appeals. Reversed and remanded. lant. MORROW, J. Appellant was convicted under a charge of keeping a disorderly house. This is a companion case of Bobbie McGregor v. State, 201 S. W. 184, No. 4873, from Tom Green county, this day decided. The errors complained of in this case are the same as in the other. For the reasons given in the other case, this judgment is reversed, and the cause remanded. The test in the statute, and in all of the cases construing it, is, Were the persons present when the grand jury was deliberatWHITE v. STATE. (No. 4870.) ing on the question of finding the indictment? Other definitions of the word "deliberating" (Court of Criminal Appeals of Texas. Feb. 13, are found in Century Dictionary: ure." 1918.) 1. LARCENY 37- FROM PERSON - INDICTMENT-REQUISITES. "Weighing facts and argument with the view of choice of decision." "The act of weighing Indictment under Pen. Code 1911, art. 1351, and examining conflicting reasons; mutual dis- for theft from the person, must allege that the cussion and examination for and against a meas-property was taken from the person of another, and it is not sufficient to allege that it was taken "from the possession of the person" of another. 2. INDICTMENT AND INFORMATION 110(1)— FORM-STATUTORY WOrds. The definition in 13 Cyc. 771, is the same as Webster's, supra. The words of the statute, or others of similar or more potent force, must be used in an indictment. [2] The evidence summarized above, we think, indicates that in the presence of the persons who were not members of the grand jury, and who were present with it, there were deliberations, within the meaning of the statute, of the grand jury as to whether an Appeal from District Court, Denton Counindictment against the appellant would be ty; C. F. Spencer, Judge. Prendergast, J., dissenting. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Leonard White was convicted of theft must be employed in order to charge the offrom the person, and he appeals. Reversed, fense. Applying that rule, this indictment and prosecution dismissed. is not sufficient. The property may be in E. B. Hendricks, Asst. Atty. Gen., for the the possession of a person and yet not be State. DAVIDSON, P. J. Appellant was convicted of theft from the person, his punishment being assessed at two years' confinement in the penitentiary. [1] The indictment, omitting formal parts, charges that appellant "did then and there unlawfully and fraudulently and privately take from the possession of the person of Scott Wilson one watch, the same being the corporeal personal property of the said Scott Wilson, without the consent and without the knowledge of the said Scott Wilson and with the intent to deprive," etc. Motion was made to quash the indictment because it did not charge that the property was taken from the person of Scott Wilson; that the expression "from the possession of the person of Scott Wilson" is not equivalent nor equal to a direct allegation that the property was taken from the person. We are of opinion this contention is correct. In order to constitute theft from the person under article 1350, Branch's P. C. p. 1369, the indictment must allege specifically that the property was taken from the person of another. That article reads thus: "If any person shall commit theft by privately stealing from the person of another, he shall be punished by confinement in the penitentiary, not less than two nor more than seven years.' To constitute this offense article 1351, P. C., provides that the theft must be from the person. It is not sufficient that it be merely in the presence or possession of the party from whom it was taken. upon his person or in manual or bodily possession. It will not do to hold, nor does the statute contemplate, that possession in the person of the alleged owner is sufficient. It must be upon and taken from his person. For the reasons indicated, the indictment is held to be insufficient, and the judgment is reversed and the prosecution ordered dismissed. PRENDERGAST, J. (dissenting). My opinion in the companion case of Willie Johnson, 201 S. W. 187, this day delivered, is my dissenting opinion in this as well as in that Sullivan, Hill & Minor, of Denton, for appellant. É. B. Hendricks, Asst. Atty. Gen., for the State. ed of theft from the person. This is a companion case to that of Leonard The statute prescribing theft from the person is: "If any person shall commit theft by privately stealing from the person of another" he shall be punished, etc. Article 1350, P. C. The next article prescribes as necessary that: not sufficient that the property be merely in the "(1) The theft must be from the person; it is presence of the person from whom it is taken. (2) The theft must be committed without the knowledge of the person from whom the property is taken. * (The other feature of this statute is inapplicable.) It is unnecessary to repeat further provisions of the latter named article. The allegation in the indictment may be as readily applied to constructive as to actual or personal possession. This crime is said by the decisions to be more nearly in line with robbery than any other species of theft. In order to constitute "robbery" under the terms of the definition, it is necessary to take property from the person by force or violence, by the use of firearms, etc. It is not sufficient Words used in a statute to define an offense The statute (article 474, C. C. P.) says: that it be taken from the possession of the need not be strictly pursued in the indictment; party under a charge of theft from the per- it is sufficient to use other words conveying the son. It must be taken from the person. Pos- same meaning, or which include the sense of session by the person of property may be ex-quired in an indictment is such as will enable the statutory words." And "the certainty reercised in many ways, and under the law is the accused to plead the judgment that may be constituted in various ways. In Jones v. given upon it, in bar of any prosecution for the State, 39 Tex. Cr. R. 387, 46 S. W. 250, it same offense." Article 453. And "an indictshall be deemed sufficient which was specifically held that property must be charges the commission of the offense in orditaken from the person; that no other means nary and concise language in such a manner of taking it would constitute theft from the as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, Article to pronounce the proner judgment." 460. And "an indictment shall not be held insufficient, nor shall the trial, judgment or oth The facts which distinguish this from ordinary theft are that in this the property must of another," and (3) "without the knowledge be taken (1) "privately," (2) "from the person of the person from whom taken." And the indictment must allege these facts. person. [2] It is a familiar rule of construction that, where the statute uses words, those same words must be used in the indictment, and, if not, then words of similar or more ment * * * any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant." Article 476. Now the indictment herein alleges that appellant "did then and there unlawfully, fraudulently and privately take from the possession of the person of Scott Wilson, one watch, the same being the corporeal personal property of the said Scott Wilson, without the consent, and without the knowledge of the said Scott Wilson," etc. So that therefrom it is seen that each and every fact necessary or proper to be made to charge theft from the person was plainly and distinctly alleged. The contention by appellant that the words "the possession," in the allegation "privately take from the possession of the person," does not allege that the watch was taken from the person of Wilson, and vitiates the indictment, is superhypercritical and supertechnical. To so contend is an attempted distinction without a shadow of difference. To "privately take from the possession of the person of Wilson" is exactly the same in substance and effect as to "privately take from the person of Wilson.' Nothing more; nothing less. There is no doubt, and can be none, but that this indictment distinctly, plainly, and unequivocally charges theft from the person, and is a perfectly good indictment and should not be quashed. However, my Associates, as shown by Judge Davidson's opinion in said White Case, hold that the indictment therein is fatally defective and sustain appellant's said contention therein. It necessarily follows that in their opinion the indictment herein is also fatally defective, so that on their opinion-not mine-this judgment herein must be reversed and the case dismissed. This does not prevent another indictment in this and the White Case and a trial thereunder. Reversed and dismissed. WILLIAMS v. STATE. (No. 4693.) 938(2) 5. CRIMINAL LAW Appeal from District Court, McLennan J. W. Taylor and Forrester & Stanford, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. Appellant was convicted of murder, and her punishment assessed at ten years. Without doubt, the evidence was amply sufficient to sustain the verdict. She claimed she killed deceased in her self-defense. Her testimony, supported by some of her witnesses, would have been sufficient, if believed, to have shown she killed deceased in self de fense. On the other hand, the testimony by the state was sufficient to show she did not kill deceased in self-defense, but killed her because of her malice aforethought against her. The jury and trial judge believed the state's case, and did not believe hers. She pleaded for a suspended sentence, and in her direct evidence, to establish her right, and get a suspended sentence, testified, "I have never been convicted of a penitentiary offense in my life." [1] The state opposed her getting a sus (Court of Criminal Appeals of Texas. Feb. 13, pended sentence. It was therefore not only 1918.) 1. CRIMINAL LAW 982-SUSPENDED SEN- rested. 2. CRIMINAL LAW 982 SUSPENDED SEN TENCE-EVIDENCE-ADMISSIBILITY. Under plea for suspended sentence, the accused's character at the time of trial being under investigation, evidence of character is not limited to time preceding the offense, but may include evidence of character at the time of trial. 3. WITNESSES TION OF PARTIES. its privilege, but its duty, to introduce whatever proper evidence within its reach to prevent her from getting a suspended sentence. The state thereupon introduced several witnesses who testified, over her objections, to various arrests of her for misdemeanors committed by her, and court records showing she had recently pleaded guilty to some of them, and to her general bad reputation, etc. She preserved bills of exception to the introduction of all this evidence. It is unneces sary to take them up separately. They all raise substantially the same question. The very statute which authorizes a suspended sentence and a plea therefor (Acts 1913, p. 8; 2 Vernon's Cr. Stats. arts. 865b, 328-IMPEACHMENT-POSI- 865c) expressly authorizes proof of the reputation of such defendant who undertakes to Very soon after get a suspended sentence. the enactment of this law, it was construed by this court. Since then many other cases have been decided, all uniformly to the same effect. One of the first cases was Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360. Therein it was held that when a defendant files a plea for suspended sentence, "this in itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled In prosecution for murder, where a witness testified to having seen accused with a pistol in her hand held behind her just before she crossed the street and shot deceased, others could testify that, from witness' position, he could not have seen the pistol, and others could say that, witness having pointed out to them the positions which he and accused occupied, he could have seen what he testified to. 4. CRIMINAL LAW >1092(6) SCOPE RECORD-TIME TO FILE. APPEAL A bill giving evidence heard when motion for new trial was overruled, filed after adjournment for term, could not be considered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to such reputation, is admissible in evidence." testified, where they claimed Mr. Hall said And when he files "a plea asking a suspen- he was, and that they experimented by looksion of sentence, then evidence which tends ing therefrom and said, in effect, appellant to show that he is not a peaceable, law-abid- could not have been seen with a pistol as Mr. ing citizen may be adduced on cross-examina- Hall said he saw her. At the noon recess tion of his witnesses, and may be adduced while the case was on trial, the county ateven though such acts are not felonies, or do torney had Mr. Hall to go with him and other not involve moral turpitude." This con- witnesses on the ground and point out to struction of this law has ever since then been them exactly where he was and where apadhered to and reiterated in every case when pellant was with the pistol, and they testified the question has been raised. Some of them that appellant could have been so seen from are here collated. Martoni v. State, 74 Tex. where Mr. Hall was. Mr. Hall swore he Cr. R. 90, 167 S. W. 350; Conatser v. State, pointed out the exact locations he and appel75 Tex. Cr. R. 91, 170 S. W. 314; Bar-lant were when he swore he saw her with the kus v. State, 78 Tex. Cr. R. 38, 179 S. W. 1166; Casey v. State, 78 Tex. Cr. R. 174, 180 S. W. 673; Medlock v. State, 185 S. W. 566; House v. State, 189 S. W. 488; Holland v. State, 187 S. W. 944; Waters v. State, 196 S. W. 536. So that the evidence objected to was admissible as the issues stood at the time, and the objections to proceedings incidental thereto show no error. But the judge in explanation of the bills shows that after all the evidence was in as it was determined he would not submit manslaughter or suspended sentence, all said evidence was withdrawn from the jury, and they were instructed they could not consider any of it for any purpose whatsoever in a special charge requested by appellant. In the Martoni Case, supra, it was held that even if such evidence had been inadmissible originally, when it was thus withdrawn in such a charge, the error of its admission presented no error. The authorities so establishing were cited and discussed at length. Also in the Waters and Holland Cases, supra, when such plea for suspended sentence had been filed, and such testimony admitted over objections, and later it was determined by the judge not to submit the issue to the jury, and the judge then withdrew the evidence from the jury, and told them not to consider it, was held the proper course to pursue, and no error was thereby presented. [2] On the question of suspended sentence it is the character of the accused at the time of the trial which is under investigation. Hence such evidence is not restricted to what it was before the offense was committed, but proof is admissible as to what it is at, as well as before, the time of the trial; and such proof can be made by the accused as well as any other witness who may know the facts. [3] Mr. T. J. Hall was an important witness for the state, and among other things testified in substance that he was at a certain point, and from there he could see appellant on her gallery, and just before she went across the street and shot and killed deceased, he did see her there holding a pistol in her hand behind her. Appellant attacked Mr. Hall and this testimony by him by hav pistol. All this testimony was admissible, as has all the time been held by this court. Barnett v. State, 76 Tex. Cr. R. 565, 176 S. W. 580; Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. See, also, Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508; Rodriquez v. State, 32 Tex. Cr. R. 265, 22 S. W. 978, and cases cited therein; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Batson v. State, 36 Tex. Cr. R. 606, 38 S. W. 48; Neely v. State, 56 S. W. 625; Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61; Railroad v. Alexander, 53 Tex. Civ. App. 125, 115 S. W. 648; Hart v. Railroad, 144 N. C. 91, 56 S. E. 559, 12 Ann. Cas. 706, and note. The case of Riggins v. State, 42 Tex. Cr. R. 474, 60 S. W. 877, cited by appellant, is not applicable. In that case the jury was permitted to go on the ground and make their own observations, and act thereon, instead of witnesses doing so and testifying. The The court, in the main charge, together with those given as requested by appellant, gave a full and fair charge in appellant's favor on self-defense both from real and apparent danger, and on threats both communicated and uncommunicated, and sufficiently applied the law to the evidence. He did not err in refusing special charge No. 5 on the subject, requested by appellant. court refused to give it as shown by the qualification of appellant's bill, on the ground "that the court gave a charge on threats, both communicated and uncommunicated, and gave, as stated, a charge on the right of defendant to arm herself. In the court's opinion, the special charge No. 5 was defective in law, and did not fit the facts." There was no error in refusing to give said charge. In Crippen v. State, 189 S. w. 498, it was held: charge does not limit the accused's right of selfdefense by a charge on provoking the difficulty, or otherwise, but submits his right of selfdefense on every defensive theory, it is not error self and seek an explanation. Williford v. State, to refuse to charge on his right to arm him38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. "The law is settled that if the court in his 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. Cr. R. 117, 167 S. W. 366; Ford v. State [77, lant which were delivered in Houston, but Tex. Cr. R. 252] 177 S. W. 1176.” The court in no way limited appellant's claimed self-defense. which appellant refused to receive, and which were of the agreed value of $868; that appellee was forced to sell the same, realizing [4, 5] Appellant contends the court erred the sum of $3.62 in excess of the amount of in refusing a new trial on the ground of her the freight bills; and that appellee was also claimed newly discovered evidence. It is compelled to pay the sum of $6.25 for teleunnecessary to go into any detail of this graph and telephone charges, and was commatter. The bill giving the evidence heard pelled to pay a fee of $100 to an attorney. on this motion was filed long after the court He sought to recover the sum of $974.25, less adjourned for the term, and cannot be cona credit of $3.62. In an amended petition the sidered. Reyes v. State, 196 S. W. 533. But Galveston, Harrisburg & San Antonio Raileven if it could be, the claimed evidence of way Company and the San Antonio & AranFannie Calhound, Watson, and Williams was sas Pass Railway Company were made denot and could not have been newly discover- fendants. The railway companies were aftered in law. But if that as to the state's wit-wards dismissed from the suit by appellee, ness Fannie Calhound could be so considered and upon a trial by jury judgment was renwholly to impeach her, it was largely for dered in favor of appellee for $868, with 6 per that purpose. In allowing the bill the court cent. interest per annum from September 6, qualified it as follows: "The trial of the case lasted three days. Mr. Hall was the first witness used by the state, and Fannie Calhound was used before the state rested, on the afternoon of the first day. Mr. J. A. Stanford, law partner of W. H. Forrester and one of the attorneys of record for the defendant, was the first witness to bring in question the possibility of seeing a person on Georgia Williams' gallery from where the witness Hall stood. J. W. Watson and H. D. Williams could have inspected the ground after Hall testified just as Stanford did, and testified before the conclusion of the trial. The newly discovered evidence as to Fannie Calhound's residence came from parties living in the immediate neighborhood, who were readily accessible at the time of the trial. The killing occurred nearly two years ago, and it is probable they are mistaken. Be sides, their testimony is of an impeaching character. Moreover, the witness Hall testified he was standing somewhere about the sidewalk, and not on the sidewalk, as defendant claims in this bill." No error is shown by this bill. 1916. In the original petition appellee sought to recover of appellant the sum of $868, value of seed, $6.25 telephone and telegraph charges, less $3.62, and $100 attorney's fee, which amounted in the aggregate to $974.63. In the amended petition he prayed for judgment against appellant for $868.58, with interest and attorney's fees. He sought to obtain a judgment also against the railway companies for $284.95 and attorney's fees. Undoubtedly the county court had jurisdiction over the amount sued for in the original petition, but it is contended by appellant that in the amended petition there was a claim against appellant for a sum in excess of the jurisdiction of the court. The items of $868 for the seed, $6.25 for telephone charges, $147 freight charges, $27.65 overcharge on freight, and $100 attorney's fees are alleged to have been claimed from appellant. This assertion is not supported by the record. The items of $27.65 and $147 were not set up against appellant. The only mention of the $147 is in ac MAGNOLIA COTTON OIL CO. v. MARTIN. counting for the expenditure of the $152.67 (No. 5966.) for which the cotton was sold. That account (Court of Civil Appeals of Texas. San Antonio. also showed that the telephone charges were Feb. 6, 1918.) COURTS 170-JURISDICTION AMOUNT INVOLVED-CONSTRUCTION OF PETITION. Where petition is doubtful as to when interest sought is to begin, it will be construed to begin when the judgment was rendered, where, if it began before such time, the court would not have had jurisdiction. Appeal from Goliad County Court; H. J. Passmore, Judge. Suit by B. W. Martin against the Magnolia Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed. Hunt & Teagle, of Houston, and Patton & Ewell, of Goliad, for appellant. G. E. Pope, of Goliad, for appellee. all paid but 58 cents. Appellee asked for judgment against appellant for the value of seed, telephone charges, and possibly, though it is not clear, $100 for attorney's fees. We are of opinion that the court had jurisdiction of the cause. The petition is doubtful as to when the interest sought should begin, and it will be construed to begin when the judg ment was rendered. In all doubtful cases the pleadings will be construed to give jurisdiction. Dwyer v. Bassett, 63 Tex. 274; Railway v. Fromme, 98 Tex. 459, 84 S. W. 1054; Railway v. Rayzor, 106 Tex. 544, 172 S. W. 1103. It was a controverted point as to whether the seed were such as appellant desired, and the jury decided in favor of appellee. That decision must stand. FLY, C. J. This is a suit filed by appellee against appellant to recover the value of a carload of cotton seed sold by appellee to ap- The judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
