To impeach a witness for defendant in seduction, the state may show witness prescribed for prosecutrix to produce an abortion.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1187, 1188; Dec. Dig. 369.] 6. CRIMINAL LAW 1169-HARMLESS ERROR -ADMISSION OF EVIDENCE.

Erroneous admission of testimony is not ground for reversal; the same fact having been testified to by another, without objection.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. 1169.]

7. CRIMINAL LAW

SERVING DECLARATIONS.

Refusing to allow defendant in seduction to show his previous statements to persons of his contemplated marriage to another than prosecutrix, it not being shown or attempted to be shown that they had been communicated directly or indirectly to prosecutrix, was not error, but it was enough to allow him to show that they had also been made to other persons more likely to communicate them to prosecutrix.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. 413.]

AUTHORITY TO TAKE

8. AFFIDAVITS 5 ATTORNEY OF ACCUSED. Affidavits sworn to before defendant's attorney are not entitled to consideration on his motion for new trial.

[Ed. Note. For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. 5.] 9. CRIMINAL LAW 1156-APPEAL-DISCRE

TION-DENIAL OF NEW TRIAL.

Denial of a new trial on the ground of newly discovered evidence will not be disturbed, unless it appears that the trial court abused its discretion to defendant's prejudice.

The

"When this witness was on the stand, she did not speak very plainly and talk from the point, as is often the case with negro witnesses, and her testimony up to the statement, in substance, that the defendant had made a proposition to her for carnal intercourse, would hardly indicate that she had such in mind, but I understood therefrom that she was meaning a conversation with defendant regarding his mistreatment of her daughter, who was a pupil of the defendant in the colored school at Denton. So soon as it became apparent that she had in mind an illicit proposition to herself by defendant, I immediately struck out the testimony, and instructed the jury not to consider the same. I think the proceeding had no effect on the jury whatever." In our opinion, this bill, as explained by

1156.]

J. T. McDonald was convicted, and appeals.

Affirmed.

Owsley & Owsley, of Denton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of seduction, and assessed the lowest punishment. It is useless to detail or discuss the evidence. There can be no question as to its sufficiency to sustain the verdict. There was some conflict in the evidence. That of the appellant and his witnesses, if believed, would have been sufficient to have authorized his acquittal. That question was for the jury, however, and not for this court. The prosecutrix was amply corroborated. Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006; Nash v. State, 61 Tex. Cr. R. 269, 281, 134 S. W. 709; Gillespie v. State, 73 Tex. Cr. R. 602, 603, 166 S. W. 135.

[1] The only objections to the charge of the court, after it had been submitted to appellant's attorneys, and before it was read to the jury were "that the same did not directly

Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 869; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Martoni v. State, 167 S. W. 351.

[3, 4] In his next bill he complains that, when the witness Leta Mitchell, prosecutrix, was testifying, she was permitted, over his objections, first, to testify to the contents of a letter she had received from appellant. She testified that she had lost it. The court, in qualifying his bill on this point, states that she had lost that letter, which rendered its contents admissible. The court was correct in this. Then it appears the witness was asked about a letetr she had written to the appellant. As to this the court, in quali fying and approving the bill, said:

"With reference to the letter she claims to have written defendant, objection was sustained parts of it she had told over objection of deto her telling the contents. However, some fendant, but, when the objection was made that defendant had been given no notice to produce

it, the objection was sustained, and I had previously stated to the jury that, when an objection was sustained to any proffered testimony, they should not consider it, even though some part of it had been heard by them, as it frequently occurs that a portion of a witness' answers appears unobjectionable, and more of it shows the whole to be inadmissible."

As qualified, this bill shows no error.

[5] In his next bill he complains of the testimony of Renza Mitchell, introduced in rebuttal, to the effect that in June, 1914, when her daughter, the prosecutrix, was sick, caused by her pregnancy, Mrs. Lawson, one of the defendant's material witnesses, called on her and gave her a prescription for cotton foot to produce a miscarriage on Leta. What the prescription was is not otherwise disclosed than as stated. In approving the bill, the court qualified it as follows:

"This bill is approved, with the qualification that the witness Mrs. Lawson had testified in favor of the defendant and against the contention of the prosecutrix, and showed considerable interest in the defense, as the court thought, and this testimony was admissible, in the opinion of the court, as affecting the credibility of the said Mrs. Lawson, and was limited orally to the jury for such purpose, and perhaps in the charge, which is not now accessible."

The charge did so limit it. Mrs. Lawson denied that she had given any such prescription. Appellant contends that, as Mrs. Lawson so denied, the state was bound by her denial, as she was attempted to be impeached on an immaterial matter. His contention does not apply in this case. The law is well established that the opposite side may show animus and prejudice on the part of the adverse witness towards him and its extent, and that in such examination great latitude is allowed when the object is to impeach the credit of the witness; also that motives which operate on the mind of the witness when he testified are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state, or status, which, fairly construed, might tend to affect his credibility. Pope v. State, 65 Tex. Cr. R. 51, 143 S. W. 611; Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181; Cain v. State, 68 Tex. Cr. R. 517, 153 S. W. 147; Burnaman v. State, 70 Tex. Cr. R. 365, 159 S. W. 244, 46 L. R. A. (N. S.) 1001; and authorities in the opinions in said cases. [6] Besides this, before Renza Mitchell testified, her daughter, Leta, had testified to the same thing, without any objection thereto by the appellant, as shown by this record. As frequently held by this court:

"The erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to.' Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; and many other cases.

[7] By other bills appellant complains that the court refused to permit him to prove by the superintendent and some of the trustees of the public schools at Denton, white men,

that about June, 1913, when they first employed him as a teacher in the colored schools at Denton, he then told them he intended to get married, and that on another occasion he so told them. The court, in explanation of these bills, refusing to permit such testimony, shows that he did so because they were not shown or attempted to be shown to have been communicated, directly or indirectly, to the prosecutrix, and that they were therefore self-serving, but that all other testimony by all other negro witnesses (the appellant and the prosecutrix being negroes) as to statements by appellant of his approaching marriage with a woman other than prosecutrix, or his claimed intended marriage, were admitted, and that all other such statements, where it was thought prosecutrix would likely learn of it, were admitted. The record shows that many of the witnesses did testify to said declarations. These bills present no error.

Notwithstanding the court's refusal to give any of his special charges is not raised and presented in such a way that we could consider them, yet we have examined all of them, and, where proper to be given, they were clearly embraced in the court's charge, and those not so embraced should not have been given, and the refusal to give them presents no error.

The

[8, 9] The only other question is that appellant has the affidavits of three persons attached to his amended motion for new trial, claiming that they show newly discovered evidence which he claims ought to have resulted in the court's granting him a new trial. first of these affidavits is sworn to before one of his attorneys, which as has been uniformly held prevents its consideration. Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, and many cases to the same effect. The appellant's motion on this ground was controverted and vigorously contested by the county attorney. It was all threshed out before the trial judge.

"It is well established by the decisions of this court that a motion for a new trial on this ground is closely scrutinized, and is largely condisposition there made of it will not be disturbed fided to the discretion of the trial court; and the on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Tex. App. 269; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. App. 209; Terry v. State, 3 Tex. App. 236.

"It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court: (1) That the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence, and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new the purpose of impeaching a former witness. If trial is granted; (5) that it is not simply for the application is defective in establishing any one of these essentials, a new trial should be

(2) That the injunction issued and served upon the State Bank & Trust Company impounded and tied up funds belonging to E. A. Fox, defendant, and prevented him from selling any property.

The plaintiff below denied these allegations, and replied that it was necessary for her health, pleasure, and business that she be away from Bexar county a great deal, but that she had, while gone, kept her room here, in which her personal effects were left. She admitted that they went upon the ranch in Medina, Bexar, or Bandera county, but says she thinks it was situated partly in all of said counties, but says that this sojourn was never intended by either of them to be aught but temporary. She alleges that appellant did not own the ranch, but had merely a contract or option to buy same, and that a large part of her separate funds, acquired as formerly stated from her by defendant, was invested in same and improvements thereon, and asserted that she was entitled to an equitable lien on same. She alleges, further, that she believes that appellant has conspired with Becher, the man from whom he obtained the contract for said land, to surrender his contract or convey same to Becher, or some other person, to defraud her of the equity therein.

This supplemental petition and reply further alleges that the fraudulent acts of the defendant were committed in whole or in part in Bexar county, and that some of the stock purchased with the money fraudulently acquired from her were in Bexar county, and that since the injunction was issued defendant had disposed of a part of the stock, and converted the proceeds to his own use. Harry Becher was made a party. The injunction issued was later modified so that it would not prevent E. A. Fox from collecting from the State Bank & Trust Company the money on deposit in the name of E. A. Fox or the Fox Realty Company, and he was permitted to check all he desired either as E. A. Fox or Fox Realty Company.

Any further statement necessary will appear in course of the discussion which follows.

The main contention is that the evidence does not show that the plaintiff had been an actual bona fide inhabitant of the state of Texas for one year and had resided in Bexar county for six months next preceding the filing of the petition. This case, as it comes to us on the question of jurisdiction, must be controlled by the facts in evidence as to the residence of Mrs. Fox, the plaintiff below.

Under the law, as it now stands (article 4632, Vernon's Sayles' Statutes), the petition and proof in support thereof must show that at the time of the filing of such petition the plaintiff had been an actual bona fide inhabitant of the state for a period of twelve

Defendant testified that he met the plaintiff about December 24, 1914, and they were married on the 13th of February, 1915, at St. Louis, Mo. There is an affidavit in evidence, made by both the parties to this suit for the purpose of obtaining a marriage license in St. Louis, in which the residence of appellee is given as 5331A, Ridge avenue, St. Louis, Mo. When they married they came to San Antonio, and he says they first lived at 121 Uvalde street, where they arrived on February 15th, which they were to vacate on March 1st. He says they vacated the house on Uvalde street, and stayed at the Travelers' Hotel. The house on Uvalde street was his home up to that time, according to his statement, and he brought his wife there to that house, which he says, however, was in his daughter's name. He says, further, that on the 2d of March they went to the Travelers' Hotel, but that on the 11th or 12th of March she made a trip to St. Louis, and came back on March 28th, and went out to the ranch with him. This ranch, according to his testimony, is in Medina county.

There is a great deal of testimony on both sides as to the matter of residence; but, since the court heard evidence on that issue and determined it in favor of the appellee, we will direct our investigation towards ascertaining whether there is sufficient evidence to sustain that finding.

Mrs. Fox says that prior to her marriage with Mr. Fox, in February of the present year, she lived in San Antonio most of the time for the past six years, and that she had an understanding with Mr. Fox prior to their marriage that they were to be here in San Antonio; that they were to go to the ranch for a short time to get things in order, and then come back to San Antonio, where he would carry on the real estate business. She says that she had a room here in the city all the time before she was married, and kept said room, with her furniture in it, during the time she was away from San Antonio, in St. Louis, Chicago, and other places, where her health, pleasure, or business called her. She says she went to St. Louis for an operation on her throat, but she says that, notwithstanding her trips and the periods of time she stayed away from San Antonio, it has always been her home for the past six years, and that her understanding and agreement with Mr. Fox was that their home would continue to be in San Antonio, as it had been in the past, except for that temporary absence for improving and preparing the ranch for the market. She says that Mr. Fox said it would be a useless expense to take the piano out to the ranch, and they left it at Goggan's music store. Further testifying, she said that he told her they would just go out there long enough to get some fences fixed up and the barn fixed, and get things in running or