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low, and upon the hearing they were admitted to bail in the sum of $1,500 each, and from this judgment this appeal is prosecuted. The Assistant Attorney General has filed a motion to dismiss the appeal of Tom Delano on the ground that since notice of appeal has been given he has made bond in the sum of $1,500, and is not now in custody. This is made to appear by proper affidavit of the deputy sheriff. Accordingly the appeal of Tom Delano is dismissed. We have examined the record carefully with reference to John Elmore, and see no reason to disturb the finding of the court in fixing the amount of the bail at $1,500, and the judgment of the lower court as to John Elmore is accordingly affirmed.

give certain special requested instructions. Some of these assignments are well taken, but, in the view we take of this case, it is not necessary here to discuss them, as we believe the case should be reversed because of the insufficiency of the testimony to sustain the verdict. The facts here, to our minds, do not show that prosecutrix was a chaste woman. It is an essential requisite that she be such, as only a chaste woman can be led from the path of virtue. The promise of marriage, if it occurred at all, appears to have been but a slight inducement to the act of copulation. Prosecutrix does not say that she loved appellant, or that she reposed confidence in him on account of the affection existing between them, but almost as soon as the proposition is made to have carnal Intercourse she consented. There is no testimony whatever on her part that she experienced any pain or suffered any injury, such as a maiden would from an act of copulation. On the contrary, she makes no complaint whatever. Appellant himself, while admiting the two acts of copulation, states that he had no difficulty in penetrating her; that he knew she had been penetrated by some man before. If the testimony here presented would authorize a conviction, it occurs to us that any person with a formal promise to marry could be convicted for copulating with a mere bawd. The facts here come within the rule laid down by this court in Spen- | petition, relator appeals. Appeal dismissed. rath v. State (Tex. Cr. App.) 48 S. W. 192; Peter Gorzell v. State, 63 S. W. 126, 2 Tex. Ct. Rep. 670.

Because, in our opinion, the charge of the court was incorrect, and the evidence does not sustain the verdict, the judgment is reversed, and the cause remanded.

Ex parte ELMORE et al.

(Court of Criminal Appeals of Texas. June 14, 1905.)

CRIMINAL LAW-APPEAL-DISMISSAL.

Where, after an appeal from a judgment in habeas corpus admitting appellant to bail, he gives bond and is liberated, the appeal will be dismissed.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 112.

Appeal from District Court, Orange County; W. P. Nicks, Judge.

Habeas corpus on the relation of John Elmore and others, and, from a judgment admitting them to bail, Elmore and Tom Delano appeal. Appeal of Tom Delano dismissed, and judgment as to Elmore affirmed.

Adams & Huggins, Brockman & Kahn, and E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Tom Delano, Bill Delano, and John Elmore were charged by indictment with the murder of William J. Watson. Tom Delano and John Elmore sued out a writ of habeas corpus in the court be

Ex parte BILLUPS.

(Court of Criminal Appeals of Texas. June 23,
1905.)

HABEAS CORPUS-DISMISSAL OF PETITION-
REMEDY.

Where, on motion, a petition for habeas corpus is dismissed, it is equivalent to a refusal to grant the writ, and the remedy is not appeal, but an application to another judge.

Appeal from Bosque County Court; P. S. Hale, Judge.

Habeas corpus, on the relation of Clark Billups. From a judgment dismissing the

Dillard & Word, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. The Assistant Attorney General has filed the following motion, to wit: "Now comes the state and moves the court to dismiss this appeal, for the reason that this court has no jurisdiction of this case, because the county judge dismissed the petition for the writ of habeas corpus, and refused to try the same upon its merits. His dismissal of the petition is equivalent to a refusal to grant the writ. Ex parte Martinez (Tex. Cr. App.) 81 S. W. 728."

The motion is well taken, and the appeal is accordingly dismissed.

CRADDICK v. STATE.
(Court of Criminal Appeals of Texas. June 14,
1905.)

1. INTOXICATING LIQUOR
EVIDENCE-HEARSAY.

ILLEGAL SALE

In a prosecution for violation of the local option law, testimony that prosecutor drew 50 cents of his wages, and went away and returned with a bottle of whisky, and stated to witness, in answer to a question, that he got the whisky from defendant, who was not present at the time of the conversation, was hearsay, and inadmissible.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 950, 955.] 2. TRIAL-LEADING QUESTIONS.

Leading questions should not be permitted on the ground that the witness is not thor

oughly familiar with the English language where it appears from his manner of testifying that he understands English sufficiently to answer questions intelligently.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 847.]

3. EVIDENCE-JUDICIAL KNOWLEDGE.

The court has no judicial knowledge as to when local option laws are put into operation. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 706-708.]

Appeal from Matagorda County Court; Jesse Matthews, Judge.

Jack Craddick was convicted of violating the local option law, and appeals. Reversed.

W. S. Holman, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, C. J. Conviction of violating the local option law. The state, over the objections of appellant, was permitted to prove by the witness Steger that prosecutor drew 50 cents of his wages, went away, and subsequently returned, showing said witness a bottle of whisky. Witness asked prosecutor where he got the whisky, who replied that he got it from appellant. This was objected to, among other reasons, because it was hearsay. Error is conceded by the state unless appellant was present and heard the conversation. We think the bill is sufficient to show that he was not present.

There are several bills reserved to the manner of interrogating the prosecuting witness by the county attorney. Certainly his manner of asking leading questions was not proper, and upon another trial the court should require that the witness be examined in a proper and legitimate way. The court undertakes to explain this by stating that the witness was a Swede, and was not thoroughly familiar with the English language. Without going into a detailed statement of this matter, we think that the witness having lived in America for 26 years, as the witness stated, and his manner of testifying, show that he sufficiently understands the English language to answer questions intelligently.

Another question presented should be noticed. The record fails to show that the local option law alleged to have been violated had been put into operation in said county. There is a loose expression or so by the witnesses that certain things occurred before local option took effect, and some statements in regard to closing saloons, but the fact that an election was held in that county is not shown, nor the result of such election, nor when it went into operation. These local option laws are special laws, and must be put into operation in the territory in the manner specified by the statute, and the court does not judicially know when these laws are put into operation. These are matters of fact to be proved.

The judgment is reversed, and the cause remanded.

SEXTON v. STATE.

(Court of Criminal Appeals of Texas. June 24, 1905.)

1. CRIMINAL LAW-WITNESSES-SHOWING INTEREST OF WITNESS-COMPETENCY OF EVIDENCE.

On a prosecution for disposing of property fraudulently after obtaining it under a contract of hiring, a witness for defendant was permitted to testify on cross-examination that she had lived with defendant in adultery for several years, and that she had visited him in jail. Held, that the testimony was admissible to show the bias, friendship, and close relationship of witness to defendant.

2. SAME-CROSS-EXAMINATION-BUSINESS OF

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4. SAME-EVIDENCE ADMISSIBILITY-TESTING MEMORY OF WITNESS.

On a prosecution for disposing of mules, with intent to defraud, after obtaining them under a contract of hiring, it was not error to permit a witness for the state to testify that defendant was drinking on the night he was at witness' house, the evidence being admitted to identify the particular time, and to show why witness remembered that on that occasion nothing was said about selling the mules, and defendant having already testified that he got whisky that day and got drunk. 5. SAME-NEW TRIAL EVIDENCE.

NEWLY DISCOVERED

On a prosecution for disposing of mules, with intent to defraud, after having obtained them under a contract of hiring, a new trial was moved for on the ground of newly discovered testimony of a witness, who would testify that prosecutor said in his presence that he had sold defendant a mule, defendant at the time being present. Held, that the evidence was not newly discovered, because, if defendant was present, he had previously known of the state

ment.

6. SAME-CUMULATIVE EVIDENCE.

On a prosecution for disposing of a mule, with intent to defraud, after obtaining it under a contract of hiring, the testimony being conflicting as to whether prosecutor had sold the mule, and authorizing a finding either way, testimony of a witness that he had heard prosecutor say that he had sold a mule to defendant was no ground for a new trial for newly discovered evidence.

Appeal from District Court, Comanche County; N. R. Lindsey, Judge.

Thurman Sexton was convicted of disposing of mules with intent to defraud, and he appeals. Affirmed.

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

DAVIDSON, P. J. Appellant was convicted for disposing of two mules, with the intent to defraud, after he had obtained them under a contract of hiring. Nellie Carnes

was a witness for appellant. On cross-examination she was permitted to testify "that she had lived in adultery with defendant for five or six years." Exception was reserved. The bill is signed with the qualification "that the testimony was offered to show the relation witness bore to defendant, to show her motive and bias in his favor." While the same witness was further testifying on crossexamination, she was asked if she did not know defendant had a living wife and child while she was living with him in adultery. She answered, "Yes; I did not exactly know it, but I heard it and believed it." Exception was reserved to this testimony. The bill is explained by the court: "That the evidence was offered and admitted for the purpose of showing the close and intimate relationship between defendant and witness, and to show her natural bias as a witness, and her close attachment to and affection for defendant, as touching her credibility as a witness." The same witness was also asked if she had not visited defendant in jail. This was admitted, as stated by the court, to show her motive and bias in the case, her attachment for the defendant, and as touching her credibility as a witness. We are of opinion that, as explained by the court, this testimony was all admissible; and we think it was relevant for the purpose of showing her bias and friendship and close relationship to appellant, and her interest in testifying in his behalf, and consequently as touching her credibility.

The district attorney asked Chapman (witness for defendant) what he had been doing three or four years prior to this time. The bill recites: "That the witness was required to detail on the witness stand all the occupations and businesses which he had been following for the past three or four years. All of which was admitted, over the objection of defendant on the ground that it was immaterial, and not pertinent to any issue, and the answers were calculated to prejudice the minds of the jury." As the matter is presented in this bill, there is no error. What occupations or business callings the witness pursued is not stated, nor is it perceived from the recitation how it could have in any way injured him.

Appellant testified in his own behalf, and on cross-examination was asked if he had not been indicted for adultery two or three times in the county of the trial, to which he answered, "Yes." Exception was reserved to this on several grounds, stated in the bill. This was admitted, as stated by the court in his qualification to the bill, "because it showed the offense involved moral turpitude, and for the purpose only of affecting his credibility as a witness, and was so limited in the charge." This character of evidence has been held admissible.

Green was permitted to testify for the state that defendant was drinking the night he was at his (witness') house. Objection was urged because it was immaterial, did not sustain any allegation in the indictment, and was asked for the purpose of prejudicing the mind of the jury against appellant. The court says:

"This evidence was admitted to identify the particular time that witness referred to, and to show why he remembered that on that occasion nothing was said about selling the mules to Sexton by Carnes; defendant having already testified that he had gotten whisky in Dublin on the day he went to Green's, and that he had gotten drunk, and spent Lee's money. Witness identifying that occasion as being the time defendant was at his house, and that on that occasion he did not hear anything said about the mule trade." With this explanation, this testimony, we think, was admissible.

Attached to the motion for new trial is the affidavit of Cal Williams, which appellant alleges is newly discovered testimony. That affidavit is as follows: "That on or about the month of last June, 1904, Dow Carnes said in my presence that he had sold to Thurman Sexton one mule, and the time Dow Carnes told me he had sold one mule to Thurman Sexton he (Thurman Sexton) was then present, working two old mules. At that time Dave Carnes was trying to trade a horse to Sexton for one of his mules. Myself and Dave Carnes came to where Dow Carnes was at work, and Dave Carnes told Dow Carnes that he could not trade the horse to Thurman Sexton for the mule." This is not newly discovered evidence, because it shows appellant was present at the time the alleged owner should have made the remarks imputed to him; that is, that he sold the mule to Thurman Sexton. If Sexton was present, and heard this, it was not newly discovered. But, even if it was newly discovered, we do not believe it is of sufficient importance to require a reversal. The question as to whether or not Dow Carnes had sold the mules to Sexton, or had hired them to him, constituted the main issues upon which the whole case was fought, and was thoroughly ventilated on both sides, there being quite a mass of testimony introduced on both sides. This was a case in which the jury could take either side, and the testimony would justify them in coming to the conclusion that the mules were hired to appellant, and subsequently converted by him; or that he bought them from Dow Carnes, as he claims he did. The testimony is in direct contradiction. The jury have settled the issue adversely to appellant, and there is sufficient evidence to justify them in finding the verdict they did.

Finding no error in the record, the judgment is affirmed.

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DAVIDSON, P. J. Conviction of burglary. Without a statement of facts or bill of exceptions this record is before us. The main contention in the motion for new trial is that the charge in regard to an account given of the possession of property recently after it was stolen, is not a sufficient statement of the law. The charge is in exact accord with that indorsed by this court in Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913.` Of course, those questions suggested for revision in regard to the sufficiency of the evidence cannot be reviewed for want of a statement of facts.

The judgment is affirmed.

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5. CRIMINAL LAW-ARGUMENT OF COUNSELCONFINEMENT TO TESTIMONY.

Argument of counsel in a criminal case should be kept strictly within the testimony adduced upon the trial.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1663, 1669.]

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Will Pool, alias Wash George, was convicted of horse theft, and appeals. Reversed.

J. T. Spencer and E. P. Anderson, for appellant. Howard Martin, Asst. Atty. Gen., fór the State.

BROOKS, J. Appellant was convicted of the theft of a horse, and his punishment fixed at confinement in the penitentiary for a term of five years.

Appellant's first bill of exceptions shows that the state's witness S. H. Hall was asked by state's counsel if stolen property had not recently been taken from his house by search warrant. He answered "Yes." Then the attorney for the state asked him if it was not a fact that he told the officers that Pool (defendant) brought said stolen property to his house, and witness answered "Yes." And further if he had not been subpoenaed as a witness in other cases against defendant, and he answered he had only been subpoenaed as a witness against defendant in the examining trial in this case. This testimony was purely hearsay, and prejudicial to the rights of the defendant. If the witness knew that appellant brought certain property for which he was being then prosecuted to witness' house, he could testify to this fact, but what he told the officers about the same was hearsay and criminative evidence of the most damaging character against defendant. The court erred in admitting this evidence.

Appellant's fourth bill shows that the state's witness Ray Thomas testified that he went up the pike in Oak Cliff, Tex., to a point a few hundred yards distant from where they had seen the horse and buggy a few hours previous thereto, and saw standing in the pike an animal, and a man standing in front and near the animal; that he did not go nearer the animal than 15 or 20 yards, when they turned their buggy around and went back home; that the moon was not shining, and the night was dark; that they could not tell the color of the animal, nor whether a mare or horse, nor whether it had a rope or anything on it; that he could not tell what kind or color of hat or clothing the man had on, nor whether he was a white man or a negro; and that he had seen thousands of men the size of defendant. After witness had stated that he could not swear that the man he saw was defendant, state's counsel asked witness whom he thought it was; and he stated that, "from the size, shape, build, and height. I believe it was the same mare I had seen that evening, and that the man was the defendant." The evidence shows that

appellant stole the animal in Milford, Ellis county, and carried it to the city of Dallas, and that defendant was seen in Dallas with the property, and afterwards arrested. This testimony was hearsay. The witness could describe the man and animal he saw as best he could, but could not give his opinion or belief that the man was appellant. The same character of testimony was introduced through the witness Gilliam. In each instance the court committed error in admitting the testimony.

The seventh bill shows appellant asked the witness Kennedy on cross-examination: "If defendant made any statement to him with reference to the property alleged to have been stolen, as he was bringing defendant from Dallas to Ellis county?" The court sustained the exception to this question. The witness would have stated "that defendant said he had bought the buggy from a party over in the city of Dallas, and that he did not know anything about the mare." Appellant insists that the court ought to have per-` mitted this testimony, because it was a reasonable explanation by defendant as to how he came in possession of the buggy, and that it was the first opportunity defendant had had to make an explanation. This explanation is appended to this bill: "It was shown in evidence that defendant was arrested for the theft of the mare, and placed in the Dallas county jail by the sheriff of Dallas county, and remained in said jail four or five days before he was brought to Ellis county by Deputy Sheriff Kennedy, and made no statement to the sheriff of Dallas county in regard to his possession of said mare or buggy. It is also shown that defendant evaded arrest by officers of Dallas county at the house of S. H. Hall, when he knew his rights to said horse and buggy were challenged, and did not go out to meet said officers, and state to them the character of his possession." Under the court's explanation, this testimony was clearly self-serving and inadmissible, under the rule authorizing the introduction of explanation made of recently stolen property. Following the above qualification, this statement is appended to the bill: "As Judge Dillard was not sworn as a witness in this case, we respectfully ask that it be stricken out--all except his approval and signature. J. T. Spencer. E. P. Anderson." It is a well-known rule that it is the duty and province of the district judge, as in this instance, to place such explanation to the bill of exceptions as the facts and testimony warrant. However, this must be done with the consent of appellant's counsel. If counsel do not consent that this be done, then the judge can prepare a bill stating the facts, leaving the appellant the right to prove up his bill, as he understands it, by bystanders. However, here it appears appellant's counsel took the bill with the judge's explanation, and ask this court to strike out

the explanation. There is no law authorizing this to be done.

Appellant also complains of the argument of counsel. We do not deem it necessary to review the bills presenting this matter, but restate, as we have many times done, that the argument should be strictly within the testimony adduced upon the trial.

For the errors discussed, the judgment is reversed, and the cause remanded.

SAVAGE v. STATE.

(Court of Criminal Appeals of Texas, June 14, 1905. On Rehearing, June 23, 1905.)

1. INTOXICATING LIQUORS-SALE - QUESTION FOR JURY.

On a prosecution for the sale of intoxicating liquor on Sunday, in violation of Pen. Code 1895, art. 199, evidence examined, and held that whether the sale of a lunch in connection with a purported gift of the liquor was in fact a sale of the liquor was a question for the jury.

2. SAME-SALES ON SUNDAY BY RESTAURANT KEEPERS.

Pen. Code 1895, art. 200, authorizing restaurants to keep open and do business on Sunday, does not exempt restaurant keepers from the penalty provided by article 199 for the sale of intoxicating liquors on Sunday.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 179.] Brooks, J., dissenting.

Appeal from Navarro County Court; A. B. Graham, Judge.

J. C. Savage was convicted of selling intoxicating liquors on Sunday, and he appeals. Affirmed.

W. W. Ballew and J. W. Scott, for appellant. Howard Martin, Asst. Atty. Gen., for

the State.

HENDERSON, J. Appellant was convicted of selling beer on Sunday, under article 199, Pen. Code. Appellant, in his able brief, presents a number of interesting questions, but, in the view we take of the case, it is only necessary to consider one; that is, did appellant make a sale of the beer? The proof shows that he was a restaurant keeper in the city of Corsicana; and that he also had a saloon, both situated in the same building, and run in the same hall or room. The state's witnesses show that appellant, as a restaurant keeper, at the time and for some time before the alleged offense, was selling lunches, and serving beer therewith. The proof showed that the lunches furnished were worth 15 cents each, and with each lunch he served a pint bottle of beer, and the ordinary price of this pint bottle was 15 cents. We quote from some of the witnesses' testimony on this subject as follows: R. J. Roark, the party to whom it is alleged the sale was made, says: "I got two lunches on that day [Sunday], and two bottles of beer. I paid

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