Imágenes de páginas

employ other counsel, or, at any rate, have be such as to indicate general prostitution on given appellant an opportunity to have his

her part, this should be considered as a circumwitnesses present. Of course, if appellant

stance by the jury in passing on whether she

was probably chaste at the time of her alleged had no defense to the action or refusal of

seduction. the court to grant a new trial, he could not [Ed. Note. For cases in point, see vol. 43, complain of injury. But here, as we under- Cent. Dig. Seduction, $ 75.] stand it, the affidavits show a good defense 5. SAME-INSTRUCTIONS. to the state's case, and these are not contro

The court should instruct that the evidence

is to be considered for no other purpose. verted by the state. Nor do we understand

6. SAME. that the testimony of the state's witness Can

If prosecutrix did not rely solely on the non, who was an eyewitness to the transac- absolute promise of marriage, but was moved tion, when his evidence is analyzed, antag- to favor defendant partly through fear, or partonizes that shown by the affidavits accom

ly through lust, or through both, defendant

should be acquitted, though a promise of marpanying appellant's motion. These affidavits

riage was then made, and was part, though not show that it was impossible, from where ap- the sole, inducement. pellant stood when he fired the shots, for him [Ed. _Note.-For cases in point, see vol. 43, to have shot or hit the prosecutor. Prose

Cent. Dig. Seduction, 88 57, 58.) cutor says he jumped in the door as soon as 7. SAME-SUBSEQUENT OFFER OF MARRIAGEappellant leveled the pistol, and that the


As under the amendment to the seduction train was moving on, and he heard the shots,

law the offer of marriage must be made to the but did not even see them. The affidavits of prosecutrix herself, it was not error in a prosethe witnesses accompanying the motion for cution for seduction of a minor female to exclude new trial show that these shots were fired,

evidence that shortly after his arrest defendant

sent to her father, requesting permission to marnot directly at the train, but parallel with

ry her, witness also testifying that the day folthe train, and after the car where prosecutor lowing defendant stated that he did not intend was had passed on from 150 to 200 feet. If to marry prosecutrix. it was impossible for appellant to have reach

[Ed. Note.—For cases_in point, see vol. 43, ed the prosecutor, or to have made an as

Cent. Dig. Seduction, $ 77.) sault on him, by the means used, then he Appeal from District Court, Bosque Councould not be convicted of an assault with in- 'ty; 0. L. Lockett, Judge. tent to murder. Taking all the circumstan- Tom Nolen was convicted of seduction, and ces of this case together, we believe that the appeals. Reversed. court erred in refusing to grant appellant a Dillard & Word and Cureton & Cureton, new trial.

for appellant. Howard Martin, Asst. Atty. The judgment is accordingly reversed, and Gen., for the State. the cause remanded.

BROOKS, J. Appellant was convicted of seduction, and his punishment assessed at

confinement in the penitentiary for a term NOLEN v, STATE.

of two years. (Court of Criminal Appeals of Texas. June 21, Appellant complains of the following por1905.)

tion of the court's charge: “The evidence 1. SEDUCTION-CRIMINAL PROSECUTION Ev. of the witness Mrs. Willie Bell Stanley, made

IDENCE-IMPEACHMENT - CONTRADICTION in the office of the attorneys for defendant, in ERROR.

which statement she says that the offense In a prosecution for seduction, evidence that prior to the trial prosecutrix, who married

committed by defendant was rape, is admitsubsequent to the alleged seduction, stated, in ted for the purpose only of showing that she substance, to defendant's attorneys, that de- had made a different statement to what she fendant had raped her, was admissible for impeachment, and an attempted limitation of it

testified to on the trial, if said statement by the court to contradiction alone was error.

does show that; and as to whether it does 2. SAME — PREVIOUS CONDUCT OF PROSECU- or not you are the exclusive and only judges." TRIX-LETTERS.

The evidence shows that prosecutrix was a In a prosecution for seduction, letters writ. ten to a third person by prosecutrix, showing

single woman, of course, at the time of the a vulgar and lascivious mind on her part, were

alleged seduction, but subsequently married a admissible for the purpose of discrediting her, man by the name of Stanley; and that prior and also to shed light on her chastity at the

to the trial she appeared in the office of the time of her alleged seduction by defendant. 3. SAME-SUBSEQUENT CONDUCT.

attorneys for defendant, and made a stateIn a prosecution for seduction, evidence of

ment, in substance, that appellant had raped acts of prosecutrix subsequent to the alleged her. The above quoted charge is an effort commission of the offense, going to show illicit on the part of the court to limit the effect of relations and lascivious conduct with others than defendant, is admissible to show that pros

said testimony, which statement was proved ecutrix was unchaste prior to the alleged illicit

on the trial. The court committed error in intercourse with defendant.

attempting to limit said testimony to contra[Ed. Note:--For cases in point, see vol. 43, diction alone; same was admissible for imCent. Dig. Seduction, & 74.]

peachment. Crockett v. State (Tex. Cr. App.) 4. SAME-SUBSEQUENT PROSTITUTION.

49 S. W. 393. While the mere fact that prosecutrix subsequently becomes a prostitute is no justification

The eighth bill of exceptions shows that or defense for defendant, yet, if her conduct appellant, after identification, offered in evi

dence certain letters written by prosecutrix, the state upon cross-examination appellant's to a third party, in which prosecutrix shows counsel asked the following questions: "Is it à vulgar and lascivious mind. We do not not a fact that defendant, shortly after his deem it necessary to copy said letters. Pre- arrest in this case, requested you to go see rious acts and conduct of prosecutrix are ad- W. L. Doyal, father of prosecutrix, and with missible for the purpose of discrediting prose- whom she lived, and ask said W. L. Doyal's cutrix, and also for the purpose of shedding permission to marry prosecutrix? And is it light upon her chastity at the time of her not a fact that you did go to the said W. L. alleged seduction by defendant. The court .Doyal, for defendant, and asked his permiscommitted error in excluding these letters. sion for defendant to marry prosecutrix? And Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. is it not a fact that you did go to see said 174; Creighton v. State (Tex. Cr. App.) 51 Doyal for defendant, and ask his permission S. W. 910; McClain's Cr. Law, vol. 1, p. 277, for defendant to marry prosecutrix? And is § 1117.

it not a fact that said Doyal promised to The record contains various bills with ref- let you know whether or not he would grant erence to the refusal of the court to permit ap

said permission? And is it not a fact that pellant to prove acts of the prosecutrix, sub

he never did let you know, and that you resequent to he alleged commission of the of- ported all these ts to defendant? And is fense, going to show illicit relations or lasciv- it not a fact that prosecutrix at said time ious conduct with other parties than defend

was a minor, a little over sixteen years of ant. This evidence should have been admit

age, and that she then resided with her fated. It was admissible for the purpose of

ther at Iredell, Texas?” The state objected showing that prosecutrix was unchaste prior

to said questions and the answers because it to the alleged illicit intercourse with appel

did not show an offer in good faith to prose lant. Davis v. State, 36 Tex. Cr. R. 550, 38

cutrix to marry her. Witness would have S. W. 174. Creighton v. State (Tex. Cr. App.)

testified to these facts if permitted. The 51 S. W. 910. The mere fact that prosecu

court appends this explanation: “When this tris becomes a prostitute, if such be the

witness was on the witness stand, the jury case, after being seduced, would not be any

were sent out, and witness testified before justification or defense to appellant for se

the court, and, in addition to what is stated ducing prosecutrix. But if her conduct be

in the bill, stated that defendant told witsuch as to indicate general prostitution on

ness on next day after he gave him the mesher part, this is and should be considered as

sage for Doyal, that defendant told him he a circumstance by the jury in passing upon

did not intend to marry Willie Bell Doyal, whether or not she was probably chaste at

and the court thought it was not made in the time of her alleged seduction. While the

good faith. Under the amendment of the secourt should admit this testimony, still it

duction law it provides that the offer must should be limited to the purpose for which it

be made to the woman, and this offer was was introduced as indicated. We are not at

never made to her, and, she being the one tempting to lay down any form of charge, but

who must decide or accept or reject it, was to indicate that the court should instruct the

immaterial and irrelevant what message was jury that such evidence should only be con

sent to her father." We do not think there sidered by them for the purpose of passing

was any error in the ruling of the court. upon whether or not prosecutrix was chaste

Harvey v. State (Tex. Cr. App.) 53 S. W. 102. at the time of the alleged seduction, and for

For the errors discussed, the judgment 18 Do other purpose.

reversed, and the cause remanded. Appellant requested the following instruction: "The court instructs you, if you be Leve from the evidence beyond a reasonable

SLIGER V. STATE. doubt that the prosecuting witness, Willie Bell Stanley (then Willie Bell Doyal), did not

(Court of Criminal Appeals of Texas. June 7,

1905.) rely solely upon the absolute promise of marriage, but that she was moved to let defend- 1. INTOXICATING LIQUORS-LOCAL OPTION

C. 0. D. PACKAGES DISPOSAL BY CON ant have the alleged sexual intercourse with

SIGNEE. her partly through fear, or partly through Defendant had a package of liquor in the lust, or through both fear and lust, then it is express office, which had been sent to him C. O. your duty to acquit the defendant, although

D., and let different parties, who furnished the

money to take the package out of the express ofyou should believe that a promise of mar- fice, have shares of the liquor. Held, that deriage was then made, and was part; though fendant was guilty of violating the local option

law. not the sole and only, reason of inducement.” This charge should have been given. Barnes


In the absence of a showing to the conV. State, 37 Tex. Cr. R. 329, 39 S. W. 684;

trary, it will be presumed on a criminal appeal Spenrath v. State (Tex, Cr. App.) 48 S. W. that an application for a continuance, the over192; Fine v. State (Tex. Cr. App.) 77 S. W.

ruling of which is complained of, was a second

application. 807.

Bill No. 15 shows that while witness Dan- Appeal from Comanche County Court; J. ny Mitchell was on the stand in behalf of H. McMillan, Judge,

George Sliger was convicted of violating the local option law, and appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

Archie S. Hall was convicted of murder in the second degree, and he appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Conviction of violating the DAVIDSON, P. J. Appellant was convictlocal option law; punishment assessed being

ed of murder in the second degree. a fine of $25, and 20 days' confinement in the The court adjourned on April 30, 1904. county jail.

What purports to be a statement of the facts The facts show that appellant had a pack

was filed on August 30, 1904. No reason is age containing intoxicants in the express of

assigned for the delay. The refusal of the fice, which had been sent to him C. 0. D.; continuance will not be reviewed in the abthat he let Condrum have one quart of it,

sence of the statement of facts. We have and other parties the remainder. Condrum no criterion by which to know or ascertain and other friends furnished the money to the relevancy or materiality of the absent pay the package out of the express office,

testimony. as consideration for the whisky they receiv

The second bill of exceptions recites as ed. The facts of this case come strictly

follows: "When the state's witness Amelia within the rule laid down by this court in Clark was on the stand, defendant, anticiDunn v. State, 86 S. W. 326, 12 Tex. Ct. Rep. pating that witness would testify that de803; Treadway v. State, 62 S. W. 574, 2 Tex. fendant was whipping his wife when deceasCt. Rep. 415.

ed rushed in and interfered, asked that the Appellant also complains of the overruling jury be retired before they heard the testiof his motion for continuance. In the ab

mony, and stated to the court that the sence of a statement to the contrary, we will state's witness, Amelia Clark, John Moy, presume it is the second application. There

aud Mrs. Minerva Moy would testify to deis no diligence shown. Furthermore, the tes- fendant whipping his wife and his cruel timony was cumulative, as will be seen from treatment of her (which testimony is fully a casual inspection of the statement.

set out in the statement of facts). To There is no error in the record, and the

which, before the jury beard the same, dejudgment is affirmed.

fendant objected, because the same was irrelevant and immaterial, and calculated to prejudice the minds of the jury against de

fendant," etc. This bill is too indefinite to HALL V. STATE.

be considered. The statement of facts is (Court of Criminal Appeals of Texas. June 7,

not before us. It is somewhat difficult to 1905.)

ascertain whether he objected to the court 1. STATEMENT OF Facts_TIME OF FILING.

refusing to retire the jury, or the admission Where the court adjourned on April 30tli, and the statement of facts was not filed until

of certain evidence to be found in the stateAugust 30th, it cannot be considered, in the ment of facts in regard to the defendant's absence of any reason assigned for the delay. cruel treatment of his wife. What the facts 2. SAME-CONTINUANCE-REVIEW.

were, or what connection they may have The refusal of a continuance will not be reviewed in the absence of a statement of facts.

had with the case, if that is the point in the 3. BILL OF EXCEPTIONS-SUFFICIENCY.

bill, is not shown. They may have been releA bill of exceptions reciting that, when a vant. They may have been a part of the res certain witness was on the stand, defendant, gestæ. They may have been the very cause anticipating that he would testify that defend

that led to the killing. In any event, the bill ant was whipping his wife when deceased interfered, asked that the jury be retired before hear

does not show any reason why the action of ing the testimony, and stated that certain wit- the court complained of is erroneous. nesses would testify to defendant whipping his Another exception was taken to the introwife, "to which, before the jury heard the same,

duction of some statements of appellant, tesdefendant objected because the same

was ir relevant and immaterial," is too indefinite to be

tified by the witness Sharpley, as follows: considered ; it being difficult to determine "I called a woman a liar. Reilly Small and whether defendant objected to the refusal to re- J used to hunt ducks down here on the tire the jury, or to the admission of the evidence.

bayou, and I could get them on the wing, 4. EVIDENCE-DECLARATIONS OF DEFENDANT.

and I think I can get those standing." ObIn a prosecution for murder, permitting a jection was urged to this, because irrelevant, witness to testify to a statement of defendant immaterial, and too remote to connect dethat: “I have just called a woman a liar. . I used to hunt ducks down here on the

ceased with the remark. This explanation bayou, and I could get them on the wing, and

is appended by the court to the bill: “That I think I can get those standing”—was not er- witness testified that defendant said: 'I ror, where it appeared from the court's explana

have just called a woman a liar. Reilly tion of the bill of exceptions that the proof

Small and I used to hunt ducks down here showed that defendant had just called a certain woman a liar, and in a difficulty just previous,

on the bayou, and I could get them on the when deceased interposed, defendant left the wing, and I think I can get 'em standing.' house, uttering a threat against deceased's life,

And the proof before this showed that deAppeal from District Court, Hardin Coun- fendant had just called Miss Moy a llar, ty; L. B. Hightower, Judge.

and in the difficulty just before this, in the

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Mos house, when Holland (deceased) inter- made that the second election is invalid on posed, defendant left the house, uttering a account of having been held within two threat against deceased's life.” We do not years from the date the result of first elecbelieve, as shown on the face of the bill, tion was declared. Article 3393, Sayles' with the explanation, any error is made to Ann. Civ. St. 1897, provides: "No election appear. We judge from this bill that the under the preceding articles shall be held difficulty bappened "just before" the utter- within the same prescribed limits in less ing of the language about which the excep- than two years after an election under this tion was reserved, in the Moy house, where title has been held therein; but at the exdeceased interfered in a wordy altercation oc- piration of that time the commissioners' curring between appellant and Miss Moy, and court of each county in the state, whenever that, on account of this interference by de- they decree it expedient, may order another ceased, defendant left the house, uttering election to be held by the qualified voters of threats against the life of deceased. Under said county, or of any justice's precinct, or the facts, deceased may have been sufficient- such subdivision," etc. We hold that the ly designated or pointed out as to give point second election is valid, because the same to the language used by witness Sharpley. was held after the expiration of two years The bill is not sufficiently specific to show from the first election. It makes no differthat error was committed. The presumption ence when the result of the election is pubis that the rulings of the trial court are lished and put into operation. The subsecorrect, and this presumption must be over- quent election can be held within two years come before a reversal would be authorized. from the date the previous election is held. The judgment is affirmed.

It follows that the second election is valid. Applicant was convicted under a complaint and information based and predicated upon

the second election, held in 1904. The judgEx parte SMITH.

ment is in proper form. (Court of Criminal Appeals of Texas. June 7,

Relator is accordingly remanded to the cus1905.)


Under Sayles' Ann. Civ. St. 1897, art. 3393,

REYES v. STATE. relative to local option, and providing that no election shall be held within less than two years (Court of Criminal Appeals of Texas. June 7, after an election has been held in the same ter

1905.) ritory, an election held more than two years after the last preceding election is not render

1. WITNESSES-IMPEACHMENT. ed invalid by the fact that the result of the pre- The state cannot impeach its own witness ceding election was published within two years. unless the witness has testified to something

injurious to the state. Application by Joseph Smith for a writ of [Ed. Note. For cases in point, see vol. 50, habeas corpus to secure applicant's discharge Cent. Dig. Witnesses, 88 1094, 1096.) from custody. Applicant remanded.


OY. Mason Cleveland, Co. Atty., and Howard

A bill of exceptions showing that the court Martin, Asst. Atty. Gen., for respondent. permitted the state to impeach its own wit

ness, without showing that the witness testiBROOKS, J. This is an original applica

fied to something injurious to the state, raises

no question for review. tion for the writ of habeas corpus. The

3. ASSAULT WITH INTENT TO MURDER-SPEfacts upon which the same is predicated are CIFIC INTENT. as follows: The record shows that local op- Without a specific intent to kill, there can tion was adopted in Johnson county on Sep

be no assault with intent to murder. tember 13, 1901, and the order declaring the

[Ed. Note.-For cases in point, see vol. 26, result and prohibiting the sale of intoxicat

Cent. Dig. Homicide, $ 112.]

4. SAME-EVIDENCE-SUFFICIENCY. ing liquors was published, respectively, on

Where it was shown that prosecutor ran, October 4, 11, and 18, 1901, and on March

and that accused fired his pistol, but without 11 and 18, 1904, in the Cleburne Ohronicle. showing even circumstantially that he shot at This court held in the Stephens (87 S. W. prosecutor, there was nothing to show that ac

cused committed an assault with intent to mur157) and Tump Griffin (87 S. W. 155) Cases,

der. decided at the present term, that this elec

5. SAME - INSTRUCTIONS SIMPLE ASSAULT tion did not go into effect, because the order AGGRAVATED ASSAULT. of the commissioners' court declaring the Where, on a trial for assault with intent

to murder, it was not shown that accused shot result, and prohibiting the sale of intoxi

at prosecutor, but only that prosecutor ran, and cants in Johnson county, was not published that accused fired his pistol, a charge on simfour successive weeks, as required by the ple, but not on aggravated, assault should be statute. A second election for local option given. was held in Johnson county on April 7, 1904,

[Ed. Note.-For cases in point, see vol. 26,

Cent. Dig. Homicide, $ 658.) resulting in favor of prohibition, and appears to be regular in every way, and properly put Appeal from District Court, Aransas into operation. However, the insistence is County; E, A, Stevens, Judge.

Pancho Reyes was convicted of assault with intent to murder, and he appeals. Reversed.

W. H. Baldwin, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

Appeal from Johnson County Court; J. D. Goldsmith, Judge.

Action by John W. Floore against W. H. Comer. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

0. T. Plummer, for appellant. Ramsey & Odell, for appellee.

BROOKS, J. Conviction of assault to murder, with two years in the penitentiary fixed as the penalty. Bills of exceptions Nos. 1 and 2 show that the court permitted the district attorney to impeach the state witness. This cannot be done unless the witness bas testified to something injurious to the state. The bills do not show that the witness had so testified-in fact, do not show what he testified. The bills are defective in this regard. Be this as it may, this character of testimony is inadmissible; and we say this in view of the fact that the case must be reversed, and the question may arise upon another trial.

Appellant insists that the evidence is not sufficient to support the verdict of the jury. We think this contention is well made. There is nothing to show that appellant ever shot at the prosecutor; and without specific intent to kill there can be no assault with intent to murder. The mere fact that prosecutor ran, and appellant shot his pistol, would not show, even circumstantially, that he shot at prosecutor. Therefore, we believe the evidence is not sufficient. Appellant also insists that the court should have submitted the issue of aggravated assault to the jury. There is no evidence showing that prosecutor was shot at. On another trial, should the evidence show that prosecutor was shot at, the court should charge on aggravated assault. If the evidence is the same as here presented, there should be a charge on simple assault, on account of the shot being fired to frighten.

The judgment is reversed, and the cause remanded.

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JAMES, C. J. The action was begun in justice's court by Floore against Comer on the following papers, filed on March 19, 1903:

"Cleburne, Texas. January 27, 1903. W. H. Comer, Esq.: Please pay to John W. Floore the amount you are due me for work and material to this date and this shall be your receipt for same. Respectfully, H. I. Malsbury.

“I accept the above and will pay on the above order any amount I find I am due Malsbury. W. H. Comer. 1-31–1903."

"John W. Floore, Esq.: Upon settlement recently with W. H. Comer, I find he owes me for painting, canvassing and papering houses, in Cleburne and Rio Vista the sum of One Hundred and Ninety and 40/100 Dollars and I owe him to be deducted from the above the sum of Thirty-nine and 68/100 Dollars, leaving balance due me by W. H. Comer at this time and subject to the order that I gave you, and which Comer has accepted the sum of One Hundred and Fifty and 78/100 Dollars which amount is to pay you. H. I. Malsbury.

“Subscribed and sworn to before me this 9th day of March, 1903. W. R. Walker, N. P. Johnson Co., Texas."

On March 31st defendant filed an answer and a motion for new trial, and on April 6th an amended motion for new trial, which was overruled on April 7th. On appeal to the county court, plaintiff filed an itemized, verified account in favor of Malsbury against W. H. Comer; and defendant Comer contested items in the account, and also filed an amended account showing Malsbury was owing him $131.94 at the time plaintiff claims Halsbury did the work for defendant and furnished the material to defendant mentioned in plaintiff's amended account, in addition to an item placed to his credit in plaintiff's amended account.

In his charge to the jury, the judge allowed the jury to consider in Comer's favor all items of the verified account which he (Comer) had contested, but he instructed the jury not to consider any evidence which tended to show that Malsbury was indebted to Comer. They returned a verdict for plaintiff for the full amount. By the charge, and also by a bill of exceptions, it is made clear that the court ruled that defendant, not having pleaded the set-off in the justice's court, could not do so in the county court. The order given by Malsbury was in effect an assignment of the particular account to Floore. The acceptance of it by Comer was an agreement to pay what was due on that account, which meant that account, less credits properly ap

COMER v. FLOORE. (Court of Civil Appeals of Texas. May 24,


An order to defendant to pay plaintiff the amount due the drawer to the date of the order, and that the order should be defendant's receipt for the same, constituted an assignment of the drawer's account to plaintiff ; and an acceptance thereof by defendant was an agreement to pay what was due after deducting credits arising in the same transaction, or independent items mutually agreed on between defendant and the drawer, 2. JUSTICE COURT APPEAL-PLEADING.

Under Sayles' Ann. Civ. St. 1897, art. 358, providing that no set-off or counterclaim shall be set up by a defendant which was not pleaded in the court below, where a set-off was not pleaded in an action on an accepted order before a justice of the peace until after judgment by default had been entered, defendant was not entitled to plead such set-off on appeal to the county court

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