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HILSCHER V. STATE.* (Court of Criminal Appeals of Texas. June 7, 1905.)

1. CRIMINAL LAW-THEFT FROM THE PERSON -EXPLANATION OF POSSESSION BY DEFENDANT OF STOLEN PROPERTY-INSTRUCTIONS.

In a prosecution for theft from the person, an instruction that if the explanation by defendant as to his possession of the property, i. e., that he found the same, was reasonable and probably true, it would be taken as true and go to defendant's acquittal, was in defendant's favor, and not erroneous.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Larceny, § 200.]

2. SAME-MISLEADING INSTRUCTIONS.

In a prosecution for theft from the person, an instruction as follows: "If you find

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that any of the property mentioned was privately stolen from the person of J. at the time and place charged, * and that subsequently any of the property so stolen was found in the possession of the defendant, then if the defendant, when such possession was called in question, stated that he had found the property in S., then, if you find that such explanation * * is reasonable and probably true, it devolves upon the state to prove its falsity, and if you so find, and the state has not proven the falsity of such explanation, then the possession of such property by the defendant (if he had such possession) must not be considered by you as tending to establish the guilt of the defendant"-was not vague, confusing, or misleading.

3. SAME-Burden of ProOF-FALSITY OF ACCOUNT OF POSSESSION.

The instruction was not open to the objection that "it imposed on defendant a greater burden than the law does; that the law requires the state to show the falsity of any account given by defendant, if the account is in itself reasonable and probable"; the effect of the instruction being that if the jury believed the explanation was reasonable and probably true, and the state had not proved its falsity, the fact of such possession must not be considered as in any manner tending to establish defendant's guilt.

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New trials are not ordinarily granted for newly discovered evidence of an impeaching character.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2331, 2332.] 5. SAME-MATERIALITY OF NEWLY DISCOVERED EVIDENCE.

In a prosecution for theft from the person, defendant's witness stated that he saw defendant on a certain day with a silver dollar and some greenbacks, but on cross-examination admitted that he saw only the dollar. Newly discovered evidence claimed by defendant as ground for a new trial was to impeach the witness by showing that he had stated to other parties that he saw defendant with a ten-dollar currency bill at the time, or, rather, with some currency. Defendant only claimed by the testimony adduced by him to have had a tendollar bill and a silver dollar. By other than the state's witnesses it was shown that on the night after the alleged robbery he had more currency than $10. Held, that the impeaching testimony was not material, or on an issue likely to have influenced the jury, and the overruling of the motion for a new trial was not

error.

Davidson, P. J., dissenting.

*Rehearing denied June 23, 1905.

Appeal from District Court, Lavaca County; M. Kennon, Judge.

R. Hilscher was convicted of theft from the person, and appeals. Affirmed.

Arthur P. Bagby, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of theft from the person, and his punishment assessed at two years' confinement in the penitentiary.

Appellant objected to the seventh paragraph of the court's charge, which is as follows: "If you find from the evidence that any of the property mentioned in the indictment was privately stolen from the person of the said John Shulark at the time and place charged in the indictment, and that subsequently any of the property so stolen was found in the possession of the defendant, then if the defendant, when such possession was called in question, stated that he had found the property in Shiner, then, if you find that such explanation of possession by the defendant is reasonable and probably true, it devolves upon the state to prove its falsity, and if you so find, and the state has not proven the falsity of such explanation, then the possession of such property by the defendant (if he had such possession) must not be considered by you as tending to establish the guilt of the defendant." The grounds of objection stated in the bill of exceptions are as follows: That the same in the beginning erroneously stated the law as to the effect of an explanation reasonable and probable by appellant on being found in possession of property alleged to have been stolen; and because said paragraph, taken as a whole, was vague, confusing, unintelligible, misleading, and calculated not to instruct, but to mislead, the jury as to the law. We do not consider the objections urged in this bill as tenable. The charge is an instruction in favor of the defendant, and tells the jury in effect that, if the explanation given was reasonable and probably true, it will be taken as true, and will go to the acquittal of appellant. Nor do the subsequent portions of the objection raise any question as to the charge. We do not believe that it is vague or confusing, or calculated to mislead the jury.

In the motion for new trial appellant again excepts to this charge. The ground of objection stated is that it imposes upon defendant a greater burden than the law does; that the law requires the state to show the falsity of any account given by the defendant, if the account is in itself reasonable and probable. We understand this to be exactly what the charge does; that is, requires the state to prove the falsity of said explanation of appellant, if the same was reasonable and probable. The charge further instructs the jury that, if the state failed to prove the falsity of said explana

tion, then the possession of said property by defendant, if he had such possession, must not be considered by the jury as tending to establish the guilt of the defendant. We understand this to be correct. The effect was to inform the jury, if they believed the explanation given by defendant was reasonable and probably true, and the state had failed to prove its falsity, that the fact of such possession must not be considered by the jury as in any manner tending to establish the guilt of the defendant. These are the only exceptions urged against said charge, and in our opinion they do not point out any question showing that said charge was improper or illegal.

In motion for new trial, appellant insisted the same should be granted on the ground of newly discovered evidence. This newly discovered evidence was of an impeaching character. New trials are not ordinarily granted for this character of evidence. Witness Frank Sadalacek was introduced by defendant. On his examination in chief he stated that he saw appellant on the day he went to town, and before he started, have a silver dollar and some greenbacks. On cross-examination he admitted that he saw no money in defendant's hand except a silver dollar; that it was Mrs. Hilscher, defendant, and old man Hilscher who told him to swear as he did. The testimony developed from this witness on cross-examination was denied by Mrs. Hilscher. Why the defendant's father was not placed on the stand to deny this is not stated. But it seems the testimony desired, as judged from the affidavits, was to impeach appellant's own witness, by showing that he had stated to other parties that he saw appellant with a ten-dollar currency bill before he went to town, or, rather, with some currency. Appellant only claimed by the testimony adduced by him to have had a ten-dollar currency bill and a silver dollar. By other than the state's witnesses it was shown that on the night after the alleged robbery he had more currency than $10. We do not think the impeaching testimony was material, or upon an issue that would have likely exerted any influence with the jury. The court did not err in overruling the motion on the ground of newly discovered evidence. The judgment is affirmed.

The charge

DAVIDSON, P. J. (dissenting). quoted in regard to possession of property recently after being taken, and the reasonable account of such possession, is not correct, and has been uniformly condemned since Wheeler's Case, 34 Tex. Cr. R. 350, 30 S. W. 913. The charge here is practically a reproduction of the condemned charge in Wheeler's Case. The charge given does not instruct the jury as to what the law is, but what it is not. It certainly is fully "misleading" if it tells the jury the law is the opposite of what it is. The court gave, or

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COMMISSION

2. SAME DATE OF OFFENSE SUBSEQUENT TO INDICTMENT. Under Code Cr. Proc. 1895, art. 420, making it the duty of the grand jury to inquire into indictable offenses of which any of the members have knowledge or of which they may be informed, it must be proved that the offense was committed prior to the presentment of the indictment, and a conviction cannot be sustained by evidence of the commission of an offense after the indictment was returned.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 548.]

Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.

Maggie Moore was convicted of assault with intent to murder, and appeals. Reversed.

Russell & Pearson, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of assault with intent to murder, and her punishment assessed at confinement in the penitentiary for a term of two years.

There is but one bill of exceptions, which relates to the following: The district attorney, in his closing argument, said: "Gentlemen of the Jury: Defendant's attorney did not dare put defendant's character in issue." To which language defendant then and there objected, and asked the court to instruct the jury not to consider the same; and the court refused to so instruct the jury, and defendant excepted. The court explains this by bill saying: "The above language of the district attorney was made in reply to one of the attorneys for defendant, who said that defendant was a good woman, and did not use bad language like the prosecutrix." The explanation of the court disposes of any supposed error in the statement of which appellant could complain.

The evidence is sufficient to support the verdict of the jury, and the judgment is affirmed.

On Rehearing.

The judgment was affirmed, and is now before us on rehearing. Appellant, in his motion, calls our attention to the fact that the indictment alleges the assault occurred on the 13th day of September, 1904, and that it was presented by the grand jury and filed on November 3, 1904. Prosecutrix, Frances Jones, in her testimony, states, "She [defendant] shot me with a pistol on the 13th day of November, 1904." And she also states, "This occurred in Ft. Bend county, Texas, some time in November, 1904." This is the only witness in the statement of facts showing when the assault occurred. So it appears from the evidence that the assault occurred some 10 days after the indictment was returned by the grand jury. It must be proved that the offense was committed prior to the presentment of the indictment. Clement v. State (Tex. App.) 2 S. W. 379, citing Code Cr. Proc. 1895, art. 420.

The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.

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2. INTOXICATING LIQUORS-SALE-EVIDENCE. Proof of selling beer to a minor, without proof that it was intoxicating, does not warrant a conviction for selling intoxicating liquors to a minor.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, §§ 143, 271, 316.]

Appeal from Williamson County Court; Chas. A. Wilcox, Judge.

Enno Cassens was convicted of selling intoxicating liquors to a minor, and he appeals. Reversed.

Dan S. Chessher and D. W. Wilcox, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Conviction of a misdemeanor. The Assistant Attorney General has filed a motion to dismiss the appeal because of a defective recognizance. We have examined the recognizance, and it does not appear to comply with article 887, Code Cr. Proc. 1895, and the decisions thereunder. The recognizance is conditioned that the said "Enno Cassens, who has been convicted in this court of a misdemeanor, and his punish

ment," etc. The statute provides the recognizance must show that the conviction was "in this cause of a misdemeanor." The substitution of "in this court" for the language "in this cause" vitiates the recognizance. Meeks v. State, 74 S. W. 910, 7 Tex. Ct. Rep. 824; Heinen v. State, 74 S. W. 776, 7 Tex. Ct. Rep. 921; Armstrong v. State, 77 S. W. 446, 8 Tex. Ct. Rep. 847.

The appeal is accordingly dismissed.

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On Rehearing.

This case was dismissed because of an alleged defect in the recognizance, and is now before us on rehearing. We copy that portion of the recognizance involved, as follows: conditioned that the said Enno Cassens, who has been convicted in this court of a misdemeanor, and his punishment assessed at a fine of twenty-five ($25.00) Dollars, as more fully appears by the judgment of conviction entered in this cause, shall appear before this court from day to day and from term to term of the same, and not depart therefrom without leave of the court, in order to abide the judgment of the Court of Criminal Appeals of the State of Texas, in this case." In the original opinion we held that because the recognizance contained the words "who has been convicted in this court of a misdemeanor," when it should have stated "in this cause of a misdemeanor," the same was defective; citing Meeks v. State, 74 S. W. 910, 7 Tex. Ct. Rep. 824; Heinen v. State, 74 S. W. 776, 7 Tex. Ct. Rep. 921; and Armstrong v. State, 77 S. W. 446, 8 Tex. Ct. Rep. 847. In Meeks' Case, supra, besides the particular defect in this recognizance, it contained another defect, in that, in connection with the clause requiring his presence before the trial court from day to day and from term to term of the same, it omitted the words "of the same." Heinen's case, supra, omitted the concluding part of the statutory recognizance, to wit, "in this case." Armstrong's Case, supra, followed Heinen's Case, containing the same defect. Perkins v. State, 78 S. W. 346, 9 Tex. Ct. Rep. 152, contains the defect in the recognizance relied on in this case. In the Texas Court Reporter, to which reference is here made, the full recognizance is not shown. If the recognizance was as full on the point in question as this here, we were evidently in error in holding the same defective. We take it that the particular allegations are no part of the obligation assumed by appellant, except in so far as the same are referred to in order to identify the particular case in which the appellant was recognized. Here it occurs to us that, notwithstanding in that portion of the recognizance in which the language "in this court" occurs does not follow the statute, yet subsequent portions of the recognizance show definitely that said recognizance was taken in the particular cause, as a reference to the same as above copied

shows, inasmuch as it is recited "as more fully appears by the judgment of conviction entered in this cause." This language shows distinctly that the recognizance was taken in the particular cause, and whatever defect may have existed in the former portion of the recognizance, by stating "in this court," instead of "in this cause," is remedied and made certain by this subsequent statement above referred to. We accordingly hold that the recognizance here set out is sufficient to give this court jurisdiction. In so far as either of said cases above cited may contravene this opinion, they are hereby overruled.

There is but one question to be considered on the merits of the case; that is, it is agreed in the statement of facts that the defendant sold and gave beer to Austin Moore in August, 1903, in Williamson county, knowing at the time of such sale and gift said Moore was under the age of 21 years. The question is, was the court below authorized and are we authorized to take judicial cognizance of the fact that beer is an intoxicating liquor? It may be conceded that there are decisions of other states holding to the effect that beer is an intoxicating liquor, and that courts will take judicial cognizance thereof. A number of decisions, however, are the other way. The decisions in this state hold that there must be proof that the beer sold or given away was an intoxicating liquor. Harris v. State, 86 S. W. 763, 12 Tex. Ct. Rep. 1018; Sullivan v. State (decided at present term) 87 S. W. 150; Blatz v. Rohrbach (N. Y.) 22 N. E. 1049, 6 L. R. A. 669; State v. Brewing Co. (S. D.) 58 N. W. 1, 26 L. R. A. 138; Hansberg v. People, 120 Ill. 21, 8 N. E. 857, 60 Am. Rep. 549; Netso v. State (Fla.) 1 Law Rep. Ann. 825.

Because there was no proof offered that the beer was intoxicating, the judgment is reversed, and the cause remanded.

MOORE v. STATE.

(Court of Criminal Appeals of Texas. June 14,

1905.)

1. BURGLARY-INSTRUCTIONS.

Where an indictment for burglary charged an entry without the consent of the occupant of the house, and the jury were instructed that to convict they must find an entry without the free consent of the occupant, a further instruction that if accused by force in the night entered the house, as charged in the indictment, with intent to commit theft, to find him guilty, was not erroneous, as authorizing his convic tion regardless of whether he had prosecutor's consent to enter the house.

2. SAME OCCUPATION OF PREMISES.

Where an indictment for burglary charges the entry without consent of the occupant of a house, occupancy is equivalent to possession, and embraced a chicken house on the premises of the prosecutor.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Green Moore was convicted of burglary, and he appeals. Affirmed.

J. W. Preston and J. M. Eckford, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant complains that the court by its charge instructed the jury to send him to the penitentiary regardless of whether he had prosecutor's consent to enter the house. The charge applied the law to the facts, thus leaving out this feature so far as the direct averment is concerned. However, it states, if the jury believe that appellant by force in the nighttime did enter the house occupied by Adolph Sueltenfuss, as charged in the indictment, with the intent to commit the crime of theft, to find him guilty. Now, here is a direct reference to the indictment, and the indictment in this respect charges the entry without the consent of the owner and occupant of the house. Besides, in defining the offense, the court directly told the jury, before they would be warranted in convicting defendant, they must find that the entry was made without the free consent of the occupant or one authorized to give such consent. We do not understand that the proof raised any issue as to this matter of consent.

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It is also contended that, the house in question being a chicken house, it could not be said to be occupied by prosecutor. fact, the proof showed that he occupied the dwelling house, and the chickens occupied the chicken house. This, it occurs to us, is a play upon words. "Occupancy" here is equivalent to "possession." Prosecutor in that sense is shown to have been in occupation of the entire premises, consisting of 30 acres, and including the house in question. There being no error in the record, the judgment is affirmed.

Ex parte PARKER.

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

HABEAS CORPUS-BAIL-REJECTION OF TES

TIMONY-REVIEW.

On habeas corpus, where bail is the only question, errors of the trial judge in rejecting or admitting certain facts will not be considered on appeal.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 114.]

Appeal from District Court, Dallas County; E. B. Muse, Judge.

R. R. Parker was remanded, under habeas corpus proceeding, to custody without bail, and appeals. Judgment reversed, and relator granted bail.

Crawford, Lamar & Crawford and Muse & Allen, for appellant. Robt. B. Seay, A. B. Flanary, and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Under habeas corpus proceeding relator was remanded to custody, without bail, for the killing of F. J. Bell. Several questions are presented for revision by bills of exception in regard to the rejection of testimony. We pretermit any discussion of these questions, and express no opinion in regard to the matters presented by these bills. This is a matter purely of bail on the record, and we will not undertake to discuss errors or supposed errors of the judge in rejecting or admitting certain facts. This might become more or less important before a jury, but not on habeas corpus, where bail is the only question.

We have reviewed the case as presented, and are of opinion that it is bailable. We are further of opinion that the bail should be fixed at the sum of $10,000, which is accordingly done. The officer having relator in custody will take his bail in the terms of the law for that amount, unless the court should be in session. Of course, then, relator will be required to enter into recognizance in open court.

The judgment is therefore reversed, and the relator granted bail in the sum of $10,000.

PARRISH v. STATE.*

(Court of Criminal Appeals of Texas. June 7,

1905.)

CRIMINAL LAW-MISCONDUCT OF JURY.

The mere inquiry by a juror during their deliberations, "Why did defendant not testify?" is not such misconduct as authorizes the setting aside of the verdict of conviction.

Appeal from Bell County Court; Jno. M. Furman, Judge.

Will Parrish was convicted of aggravated assault, and he appeals. Affirmed.

Winbourn Pearce, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $250, and six months' confinement in the county jail.

In the motion for new trial, appellant complains of the misconduct of the jury. Attached to the motion is the ex parte affidavit of appellant's counsel setting up said misconduct, which was an allusion by one of the jurors, after they retired to consider of their verdict, to the failure of the defendant to testify. Prior to passing upon this motion, the trial court had all of the jurors brought in, and they testified. Some of them stated that they heard somebody say, "Why did the defendant not testify?" The substance of the testimony of the jurors is that there was nothing further said about it, some stating that they did not even hear the remark. In Mason v. State, 81 S. W. 718,

*Rehearing denied June 23, 1905.

10 Tex. Ct. Rep. 900, we held that the mere mention in the jury room of the failure of the defendant to testify, when this is immediately suppressed, is not ground for reversal. In that case one of the jurors remarked, "Why did not the defendant take the stand?" and another replied, "Out that out." Others testified they did not hear the remark. We accordingly hold that the mere allusion by one of the jurors during their deliberation to the failure of the defendant to testify is not, per se, cause for reversal. The record before us shows that it could not, nor did it, influence the action of the jury in any respect.

Appellant insists that the evidence is not sufficient to support the verdict of the jury. We think it is amply sufficient. The judgment is affirmed.

GARZA v. STATE.

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

1. ASSAULT WITH INTENT TO MURDER-SELFDEFENSE-INSTRUCTION.

On a prosecution for assault with intent to murder, where the defendant was shown to have entered the difficulty merely to protect a friend, and at no time acted in self-defense, he was not entitled to a charge on self-defense, but was entitled to a charge confined to an affirmance of his right to interfere in behalf of his friend.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 624-626.] 2. SAME-PROVOKING TION-EVIDENCE.

DIFFICULTY-INSTRUC

Evidence examined, and held sufficient to justify a charge on provoking the difficulty. 3. SAME-DEFENSE OF ANOTHER.

The evidence was also sufficient to require a charge that, if defendant's friend, in whose behalf defendant interfered, had no intention of provoking the difficulty, and did no act to bring it on, but went into the store with his com panions expecting a settlement, and that they were then assaulted by prosecutor, his friend's right of self-defense was complete.

4. SAME-PROVOKING DIFFICULTY.

To render one guilty of provoking a difficulty, he must be shown to have used some language or done some act with that intent.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, § 149.]

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Saturina Garza was convicted of assault with intent to murder, and he appeals. Reversed.

W. L. Grogan and B. A. Cox, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There is no bill of exceptions to the introduction or rejection of evidence. The only

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