W. 927; Baird v. State, 51 Tex. Cr. R. 322, [ but not an entrance in the private parts of 101 S. W. 991; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 543; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135; Kempner v. State, 57 Tex. Cr. R. 355, 123 S. W. 131; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Choate v. State, 59 Tex, Cr. R. 266, 128 S. W. 524; Hart v. State, 67 Tex. Cr. R. 497, 150 S. W. 188; Criner v. State, 71 Tex. Cr. R. 369, 159 S. W. 1059; Stephens v. State, 77 Tex. Cr. R. 30, 177 S. W. 92. [2] Appellant made a motion for a continuance, and he has some very defective and incomplete bills to the admission of certain testimony. None of these matters can be considered in the absence of a statement of facts, as has all the time been held by this court in a great number of decisions. Hence the judgment must be affirmed. (83 Tex. Cr. R. 394) REESE v. STATE. (No. 5024.) the girl. The girl was impeached by showing that she made statements impairing the truth of her statements before the jury. She denied making the statements, and the appellant contradicted her. The facts show that there were indications of an emission and some blood on her drawers three or four days subsequent to this transaction. However, she said nothing about it until her mother made this discovery. Appellant himself testified and introduced evidence in corroboration showing an alibi. He denied the whole transaction, and said that he was not present, and that the matter did not occur so far as he was concerned. There is evidence also that the girl developed gonorrhea four or five days after the alleged transaction. This matter was gone into pretty fully before the jury. Appellant was sustained by his mother to the effect that she did the washing of the clothes of defendant, and that she saw no evidence of disease on his clothes. There was a wom (Court of Criminal Appeals of Texas. May 15, an living in the house with the mother of 1918.) 1. RAPE 16(5)-ASSAULT TO COMMIT RAPE -FORCE. In prosecution for assault to commit rape on a girl under 15 years of age, force and con sent are not material issues. 2. RAPE 59(20, 21)-ASSAULT TO COMMIT RAPE-AGGRAVATED ASSAULT. In prosecution for assault to commit rape, evidence held not to call for instruction on aggravated assault. 3. RAPE 53(2)—ASSAULT TO COMMIT RAPE -EVIDENCE. Evidence held sufficient to sustain conviction of assault to commit rape on a girl in her eighth year. 4. CRIMINAL LAW 763, 764(8) - INSTRUCTIONS ON WEIGHT OF EVIDENCE. * prosecutrix named Cochran, who, it was developed, had syphilis. The contention of appellant was that the pus from this woman might have gotten on the child and developed the gonorrhea. A physician testified that this could not be; that if the woman had both syphilis and gonorrhea that it was possible if the pus should have gotten on the girl's private parts that either disease might have been developed, but the evidence shows that the woman Cochran did not have gonorrhea, but only had syphilis. [1-3] This is a case of assault to commit rape on a girl under 15 years of age; therefore the questions of force and consent were not material issues. The element of force was not charged in the indictment. Nor do we think under the circumstances of this case that the question of aggravated assault was suggested; therefore the court did not Appeal from District Court, Austin County; err in refusing to charge this phase of the M. C. Jeffrey, Judge. A charge, if defendant did "make an assault upon said L. with the intent * * * to ravish her ** you will find the defendant guilty," was not on the weight of the evidence as assuming that defendant made an assault. Miles Reese was convicted of assault to commit rape upon a girl under 15 years of age, and he appeals. Affirmed. C. Douglas Duncan and Johnson, Matthaei & Thompson, all of Bellville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of assault to rape upon a girl under 15 years of age. The facts show that she was between 7 and 8 years of age at the time of the occurrence. The little girl was left at home with her baby sister by her mother. Appellant came to the house, laid her on the bed, and undertook to have intercourse with her. Her testimony is to the effect that he pulled down her drawers and placed his privates between her legs and hurt her a little. There was an emission, law. Under quite a number of authorities we are of opinion that the judgment should be sustained. See Callison v. State, 37 Tex. Cr. R. 217, 39 S. W. 300, Bourland v. State, 49 Tex. Cr. R. 197, 93 S. W. 115, Herbert v. State, 49 Tex. Cr. R. 72, 90 S. W. 653, Sanders v. State, 54 Tex. Cr. R. 171, 112 S. W. 938, and Branch's Ann. P. C. pp. 964, 965, for enumerated cases. [4] The charge given by the court is criticized, especially this clause: the evidence, beyond a reasonable doubt, that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes with or without her consent, you will find the tion to entertain it. This is complained of, defendant guilty," etc. and the appeal is from the entry of this order dismissing the motion. This is not a charge upon the weight of the evidence. It did not assume that the offense had been committed as a fact and so charge the jury. The jury was instructed that if they should find from the evidence that appellant made such assault, then in connection with the other phases of the charge the jury would be justified in convicting. It did not assume that the assault was committed, but left the jury to determine that fact, and if they should so find they might convict. We understand this to be a correct charge, and not on the weight of the evidence. A similar charge was held to be not subject to such objections in Sanders v. State, supra. The judgment will be affirmed. (83 Tex. Cr. R. 307) BURGEMEISTER v. STATE. (No. 4939.) (Court of Criminal Appeals of Texas. April 24, 1918. Rehearing Denied May 29, 1918.) CRIMINAL LAW 1023 (2) - APPEAL-INTERLOCUTORY JUDGMENT. Since, under Vernon's Ann. Code Cr. Proc. 1916, arts. 488-643, judgment nisi in forfeiture of bail bond is in the nature of an interlocutory judgment, and does not become final in view of articles 490, 493-498, until citation is entered, dismissal of motion to set aside judgment nisi left such judgment in statu quo, and the order was not appealable, in view of Vernon's Ann. Code Cr. Proc. 1916, art. 960, and Vernon's Sayles' Ann. Civ. St. 1914, art. 2078, providing that appeals lie only from final judgments, and accused after forfeiture of bond having appeared before final judgment and submitted to trial, she or her sureties were entitled to have forfeiture set aside on showing legal grounds therefor under Vernon's Ann. Code Cr. Proc. 1916, art. 504. Appeal from District Court, Bexar County; W. S. Anderson, Judge. Hedda Burgemeister, having been charged with a felony, gave bond on which forfeiture was taken and judgment nisi entered, and she filed motion to set aside such judgment, which motion was dismissed. From the order dismissing the motion, defendant appeals. Appeal dismissed. T. M. Campbell, of Palestine, and Chambers & Watson, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. The motion contained meritorious allegations, and the record discloses no reason for the alleged absence of jurisdiction, and no other reason for the failure of the court to hear and determine the motion. If he had done so and entered final judgment on the forfeiture, there would have been no question of the right of appeal. Having failed to do so, and merely dismissed the motion, the right of appeal is quite doubtful. Article 960, C. C. P., relating to the procedure on forfeited bail bonds, provides for an appeal upon the rendition of a final judgment. The rule in civil cases obtains; under these, appeals lie from a final judgment. Article 2078, Sayles' Civil Statutes, and annotations thereon. Except in special cases, appeals from interlocutory orders are not entertained. See Sayles' Civil Statutes, art. 2079, and cases cited. The judgment nisi is in the nature of an interlocutory judgment. See Vernon's C. C. P., title 7, c. 4. After the judgment nisi is entered, citation is necessary as a predicate for final judgment. Articles 490, 493, 498, C. C. P. It is only when after citation is served and final judgment is entered that execution may issue. Article 581. The dismissal of appellant's motion left the judgment nisi in statu quo. It appears from the motion that no citation had issued upon it, and that the state was making no effort to make it final. The appellant on her sureties had a right, she having appeared before final judgment and submitted to trial, to have the forfeiture set aside (article 504, C. C. P.) upon showing legal grounds therefor. The dismissal of her motion would seem to leave this right intact. The order made does not adjudicate her rights, does not purport to make the judgment final. Neither she nor her sureties can suffer any injury from execution of the judgment nisi. No order that this court could make would conclude the matter, and we are constrained to believe that we are without jurisdiction to entertain the appeal. Ryan v. State, 198 S. W. 582. See bond was executed she had delivered to the Appellant suggests that before her appeal sheriff a sum of money equal to the amount of her bond fixed by the court, and that the sureties were obtained by the sheriff, and that the MORROW, J. The appellant was charged status of the case leaves her without remedy with a felony in the district court of the in her desire to recover the money so depositThirty-Seventh judicial district, executed a ed. It is possible that the law would afford bond in the sum of $7,500, upon which a forfeiture was taken and judgment nisi entered some remedy, but we are of opinion that it on the 1st day of February, 1915. On Febru- does not lie in the power of this court to give ary 11, 1918, she filed in the court mentioned it on appeal from an order dismissing the moa motion to set aside the judgment nisi. The court by his own motion dismissed the application to set aside the judgment nisi, the judge decla cing that he was without jurisdic tion. The appeal is dismissed. PRENDERGAST, J., absent. (83 Tex. Cr. R. 485) SMITH v. STATE. (No. 4879.) After some further parleying, because it was so late, Mr. Hildreth induced them to wait (Court of Criminal Appeals of Texas. Feb. 13, over until morning. Appellant then backed 1918. On Motion for Rehearing, May 29, 1918.) 1. CRIMINAL LAW 510- CORROBORATION corroborated. 2. CRIMINAL LAW 508(7)-COMPETENCY OF ACCOMPLICE-PLEA OF GUILTY. Under Code Cr. Proc. 1911, art. 788, in a prosecution for theft of an automobile, the trial court properly overruled defendant's objection to his accomplice's competency as a witness, where such accomplice had pleaded guilty to stealing the car, but had not been sentenced. 3. CRIMINAL LAW 1169(7) APPEAL HARMLESS ERROR-EVIDENCE. In such prosecution, testimony of the accomplice that he first met defendant in the county jail, that he himself was in jail, and that defendant was there to see about making bond for him, not himself confined in jail, was not error justifying reversal. 4. LARCENY 55 THEFT WITH ACCOмPLICE-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to show that defendant and his accomplice actually stole the car, and that defendant was a principal with his accomplice, even if the latter himself personally did the stealing. 5. CRIMINAL LAW 829(1)-INSTRUCTIONSREPETITION. Special charges embraced in the main charge were properly refused. On Motion for Rehearing. 6. CRIMINAL LAW 511(1)-CORROBORATION OF ACCOMPLICE-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to corroborate defendant's accomplice under the statute as con strued. Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. the car into Mr. Hildreth's barn, and they remained there until the next morning. Mr. Hildreth was suspicious of them, and early the next morning sent for the constable, who came to his house and arrested them and took charge of the car. The car was later identified as Mr. O'Rourke's and delivered to him. Appellant testified that on the night of June 18th, when he met Hawkins in Dallas, Hawkins already had the car, and wanted him to take him to the man who he said wanted to buy a car, and he went to Hildreth's with him; that he had no interest in the car, but Hawkins was to pay him $5 for Hildreth said taking him to Hildreth's. appellant that night told him Hawkins owned the car and had owned it for two months. Will O'Leary (Tom Hawkins) swore: That appellant met him in Dallas before the night of June 18th, and told him "he knew where he could sell one (a car) if we could get it." "He told me we could sell the car at Blue Ridge." That on the night of June 18th, about 7:30 or 8 o'clock, they met again, when the subject was again referred to, and appellant told him he would go get some money for gasoline, "and we will go get the car." That he got $2, and they went and got the car and drove it to Blue Ridge, with the result as stated. That he did not tell appellant it was his car-"he knew it was not my car." That appellant suggested he take the name of Tom Hawkins. He said, "you can't go by your name, because they could identify you." That they were to split the money, half and Will H. Smith was convicted of theft of an half, they were to get for the car. automobile, and he appeals. Affirmed. John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. This is an appeal from a conviction for the theft of an automobile with the lowest punishment assessed. [1, 2] O'Leary (Hawkins) was an accomplice, and the judge so told the jury in a proper charge, requiring corroboration. He had already pleaded guilty to stealing said car, but had not been sentenced. The court therefore properly overruled appellant's objection to his competency as a witness. Article 788, C. C. P., and cases cited in note 19, p. 701, 2 Vernon's Crim. Stats. Briefly summarized, the testimony shows that Mr. Hildreth, who lived in Blue Ridge, in Collin county, was in Dallas a short time [3] Appellant has another bill wherein he before June 18th to buy an automobile, and complains of the testimony of said accomthere met appellant and so told him. Mr. plice witness that he first met appellant in O'Rourke's automobile was stolen from Cycle the county jail. This bill is entirely too meaPark in Dallas about 9 or 10 o'clock in the ger. It does not show the surroundings so night of June 18th. Later that night appel- as to show error or authorize this court to lant, with Will O'Leary, reached Mr. Hil- hold it error. From the testimony of this dreth's home with Mr. O'Rourke's car. Ap- witness on the subject, if we could look to pellant knocked on Mr. Hildreth's door, called the statement of facts, we gather that the him out of the bed, and told him, "I have witness himself was in jail, confined on some brought you the car." Mr. Hildreth asked charged offense, and that appellant was there him "What car?" and he said, "The car I to see him about making bond for him not was telling you about down at Burleson's," himself confined in jail. At any rate it is the place they had met in Dallas. Appellant not shown to be any such error as to justify then tried to sell him the car. At this time a reversal. appellant introduced said O'Leary to Mr. [4, 5] The evidence was sufficient to show Hildreth under the name of Tom Hawkins. that appellant himself, together with O'Leary For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indoxes So I actually stole the car. It also raised the, the price was. They said they wouldn't go to question, and was sufficient to show that he was a principal with O'Leary even if O'Leary himself personally stole the car. Both of these issues were submitted by the court in its charge to the jury, to which charge there was no objection at all. Appellant requested some special charges on the same subject, but the court refused to give them, stating thereon that he did so because they were embraced in his main charge. The court committed no reversible error in refusing to give his special charges. The judgment is affirmed. On Motion for Rehearing. In his motion for rehearing and brief thereon appellant contends, "The evidence is not legally sufficient, * * aside from that of Willie O'Leary, an accomplice, to warrant a conviction," and that the testimony of the accomplice was not sufficiently corroborated. The state's theory and con tention was that appellant and O'Leary were principals in the theft of the automobile. [6] The testimony was somewhat fully stated in the original opinion. But it will now be more particularly stated with reference to appellant's contentions. The evidence establishes that Mr. O'Rourke's car, automobile, was stolen from him at Cycle Park in the city of Dallas in the night of June 18th. On that same night, about 10 or 11 o'clock, appellant and O'Leary together appeared at Mr. Hildreth's home at Blue appeared at Mr. Hildreth's home at Blue Ridge in Collin county, with said car. Blue Ridge is more than 5 miles beyond McKinney from Dallas, perhaps 40 or 50 or more miles from Dallas. Early the next morning the car was recovered from appellant and O'Leary at Mr. Hildreth's by an officer, who at the time arrested them for the theft of it. The car was identified and restored to Mr. O'Rourke. Mr. Hildreth swore he met appellant first in Dallas May 30th at Mr. Burleson's. Appellant himself swore this meeting was three or four days before June 18th, the night the He also swore, "We (O'Leary and himself), left Dallas (for Hildreth's) on the night of the 18th of June," with the car. Hildreth further swore: "I saw him (appellant) up about Blue Ridge on the 19th day of June this year. This redheaded boy (O'Leary) was with him. Smith introduced the red-headed boy to me as Tom Hawkins; that was at my house. They came up there in a Ford car. I talked to this defendant at that time. * * * He drove up to my house and called me up out of bed and wanted to sell me a Ford car. He says, 'I have brought you the car.' I didn't recognize who he was, and I said, 'What car?' He said, "The car I was telling you about down at Burleson's.' I said, 'I don't want any car now; I have a new one;' and he said, 'You would buy a bargain;' said, 'You told me you would buy it; and I said, 'You boys come in, and we will fix you a bed, and I will look at the car in the morning.' He insisted that I take a look at it, and then I went out and seen it wasn't bed, but would drive in my lot, and I said, over there if you want to sleep in the car, and 'Boys, the barn there is vacant, dover (drive) I will look at the car in the morning.' suspicioned something, and sent my boy up town to the constable early the next morning, and he came down there and arrested them. Mr. Smith was driving the car. time I had never met O'Leary; I had met Smith prior to that time. When I met Smith in Dallas he told me he had a friend that had a car down here that had not been run but a few miles, and he would take $275 for it; that was my business down here, to buy a car, and I said, 'Where is your friend?" " On cross-examination he said he didn't know who drove the car to his house at Blue Ridge; that appellant told him it was a new Ford, had been run only a few miles, "but I know it was an old car, and had been run lots from the looks of it;" that he didn't know who had possession of the car, "only Smith (appellant) drove it back to the barn, or backed it in the barn, and then drove out to the pasture the next morning to look at the horse I traded him." After appellant himself alone failed to sell Hildreth the car that night apparently as his own, he then and not till then told it was O'Leary's, and falsely stated O'Leary had owned it two months. O'Leary, he and appellant together, as prinAccording to the positive testimony of in that, immediately after the car was stolcipals, stole the car. He was corroborated en, they were together in possession of it, and together at once took it to Mr. Hildreth's, where appellant himself tried to sell it to Hildreth, whom, in effect, he swore he had staked out to sell it to, and told him, “I have brought you the car;" and, even as between him and O'Leary, what he said and did showed that he was in control of the car and not O'Leary, but, in any event, that they were together in possession, as against the true owner and all others. Appellant in his own testimony flatly contradicted himself, and was flatly contradicted by others. In trying to avoid the fact of his control and possession of the car, he first swore O'Leary got him to go with him in the car to Hildreth's, and agreed to pay him $5 therefor. Then later he swore: "I was to get nothing out of the proceeds of this car except $5 that Mr. Hildreth was to pay me for my trouble. O'Leary was not to pay me anything at all." O'Leary swore he and appellant were to divide equally what they got for it. Appellant swore he went with O'Leary to Hildreth's with the car, but did not try to sell it-he only introduced O'Leary to Hildreth as Tom Hawkins. As shown above, by Hildreth's evidence, appellant alone at first tried to sell the car to Hildreth, and pressed him to buy that night, and that appellant was in control of the car as to O'Leary. He drove it to Hildreth's-at least did not deny doing so-and after he failed to induce Hildreth to barn, and next morning he drove the car in- and said: "I am going to go and look for to the pasture to see the horse, etc. O'Leary, the accomplice, swore he did not steal the car alone, but that he and appellant, before stealing it, agreed to do so, to sell it to Hildreth, whom appellant had staked out to sell it to, and that they went together, and together did steal it, and together took it to Hildreth's. The evidence was amply sufficient to show that appellant and O'Leary were principals in stealing the car, and that O'Leary was sufficiently corroborated under the statute and decisions thereunder. The motion is overruled. MORROW, J. Appellant was convicted of theft, and his punishment assessed at two years' confinement in the penitentiary. The property stolen was an automobile belonging to Jewell Ansley. Ansley drove his car to the fair ground at Dallas, and stored it in Crum's wagon yard in the fair ground. There was evidence from which the jury were justified in concluding that appellant took the car from the wagon yard without Ansley's consent, and was afterwards found in possession of it. He explained his possession by claiming that he got it from a man by the name of Savage. Circumstances were sufficient to rebut the truth of this statement. There are no bills complaining of the charge, or of errors committed on the trial. In motion for new trial appellant challenges the sufficiency of the evidence to show ownership. Ansley testified he left his automobile at Crum's wagon yard, gave no one consent to remove it, and afterwards found it was gone. He said: "I turned the car over to the man at the gate. He gave his name as J. S. Crum, and I told him I would be there until late in the afternoon. He said, 'All right;' everything was safe." B. D. Crum, the son of J. S. Crum, testified that the man whom he thought he identified as appellant got the car, and that the witness had been at the yard about 10 minutes when the man whom he took to be appellant came him and get this car." He took the car and went toward town; that he thought appellant was the owner of the car. It would seem that Crum, the keeper of the wagon yard, was the mere custodian of the car, and that his possession of it was not such as to bring about a variance under the facts between the proof and allegation of ownership. There are many cases cited by Mr. Branch in his Ann. P. C. under the proposition. At page 1323 he says: "Property in the mere custody of a servant or other person is and may be alleged to be in the possession of the owner, if no special owner had possession." Among the authorities cited by the author, and which we think support the theory of the state that the proof supported the allegation of ownership made in the indictment, are the following: Thomas v. State, 1 Tex. App. 289; Bailey v. State, 18 Tex. App. 426; Emmerson v. State, 33 Tex. App. 89, 25 S. W. 289; Russell v. State, 55 Tex. Cr. R. 330, 116 S. W. 573; Livingston v. State, 38 Tex. Cr. R. 535, 43 S. W. 1008; Garling v. State, 2 Tex. App. 44; Clark v. State, 23 Tex. App. 614, 5 S. W. 178; Odell v. State, 44 Tex. Cr. R. 310, 70 S. W. 964; Staha v. State, 69 Tex. Cr. R. 356, 151 S. W. 543; Crouch v. State, 52 Tex. Cr. R. 463, 107 S. W. 859. The judgment of the lower court is affirmed. As the Nueces county court was expressly given jurisdiction of all misdemeanors by Acts 23d Leg. c. 21, and the district court only had jurisdiction of felonies and offenses involving official misconduct, Acts 35th Leg. c. 46 (Vernon's Ann. Code Cr. Proc. Supp. 1918, arts. 9729721), creating a criminal district court, "which shall have*** * all of the criminal jurisdicdivesting said district court only of jurisdiction tion now vested in *** the district court," it vests in said criminal district court, and containing no provision conforming the jurisdiction of the county or justice court to its jurisdiction, jurisdiction, under Const. 1876, art. 5, §§ 1, 16, did not divest such county court of its criminal as amended September 22, 1891, providing that the Legislature may establish such courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto, and that the county court shall not have criminal jurisdiction in any courts where, there is a criminal district court, "unless expressly conferred by law," and that in such inferior tribunals in criminal cases shall be to counties appeals from justices' courts and other the criminal district court, under such regula For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |