Bastrop County, TX
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SUPREME COURT RECORDS PAGE 21

File contributed by Lisa Lach and proofed/formated by Dena Stripling

Tex.Ct.App. 1883.

D. CARTWRIGHT AND J. NASH v. THE STATE.

14 Tex.App. 486, 1883 WL 8943 (Tex.Ct.App.)

APPEAL from the District Court of BASTROP. Tried below before the Hon. L. W.

MOORE.

*1 At the spring term, 1881, of the District Court of BASTROP county the

grand jury returned an indictment charging that the appellants, Dave

CARTWRIGHT and John NASH, did, on the preceding twelfth day of February,

kill and murder one B. F. DAVIS, by shooting him with pistols, etc. The case

came to trial in May, 1883, when the appellants were found guilty of murder

in the second degree, and a term of six years in the penitentiary was

assessed and adjudged against each of them.

The affray which resulted in the homicide took place four or five miles from

the town of McDade, on the road leading from there to the town of BASTROP.

William PARIS, the first witness for the State, testified that on the

twelfth day of February, 1881, he saw DAVIS, the deceased, about half a mile

from McDade on the road towards BASTROP. Witness was driving a four-mule

wagon, and was riding the left-hand near mule of the team. Deceased got into

the wagon, and seated himself about midway of it, with his right side

towards the witness. He had a breech loading double barreled shot gun on his

lap, or in his hands, with the muzzle pointing towards McDade; and in this

manner he rode about three miles on witness's wagon. While going along, the

deceased showed his cartridge belt and several cartridges to the witness.

The cartridge shells were loaded. Witness, with his wagon and the deceased,

had gone about the distance stated, and had got within about one hundred

yards of James TOWNSEND's house, when the defendants, Dave CARTWRIGHT and John NASH, rode up in a gallop from the direction of McDade. CARTWRIGHT rode up on the right hand side of the wagon; NASH in rear of it. CARTWRIGHT said

"Hold up there;" he had a pistol in his hand. Witness then looked around to

stop his mules, and the shooting commenced. Looking around, the witness saw

CARTWRIGHT shoot once. There had been shots before he looked around and saw

CARTWRIGHT shoot. Before the shooting began the witness had observed KELTON

(a witness for the defense) working at a chimney on the east end of

TOWNSEND's house. Several shots were fired behind the witness. He did not

see NASH until after the firing had ceased. NASH then had a pistol in his

hand. Witness thought there were from three to five shots fired, probably

more. Two of them struck the end of the wagon bed; one went through the

witness's clothing, and another hit one of his mules, entering the hind part

of its leg and coming out in front. Witness saw blood on the clothes of the

deceased, but did not see his wounds.

Cross-examined, the witness stated that after the firing ceased CARTWRIGHT

told him to take the gun from the deceased, who was rather bent over in the

wagon. Witness took the gun from the deceased, and laid it on the ground.

Deceased was still alive, but said nothing. The witness distinguished no

difference in the sounds of the different shots; but on hearing read his

sworn statement made at the inquest held the day after the killing, the

witness adhered to it in preference to his present recollection. In that

statement the witness had said that he did not know whether the deceased

fired any of the shots or not; that he did not see the deceased shoot, "but

there were sounds that seemed different shots from the pistols."

*2 Aleck WHITE, for the State, testified that he saw the deceased in PARIS's

wagon, on the McDade road, about a mile from James TOWNSEND's, between two

and three o'clock in the afternoon. When witness got in about a quarter of a

mile of TOWNSEND's, he was passed by the two defendants, who were riding in

a slow lope towards the town of BSTROPp. Witness saw them when they were a

short distance behind PARIS's wagon. The witness heard three or four shots,

but was so frightened that he did not see who fired them.

Doctor HOLT, for the State, testified that he examined the body of the

deceased a day or two after the homicide, and found in it two holes, which

he took to be bullet holes made by a revolver or six shooter. One of the

bullets entered just below the right shoulder blade and came out through the

right nipple. The other bullet entered on the right of the back bone, three

or four inches below the one first mentioned, and came out below the right

nipple.

Tom BISHOP, for the State, testified that he was constable of the McDade

precinct at the time the deceased was killed. On the day that event

occurred, the witness was requested by Horace NASH to execute a writ of

sequestration which, at his instance, was being issued by the justice of the

peace, for the seizure of the gun of B. F. DAVIS, the deceased. Witness

replied that he was too unwell to execute the writ, and asked the defendant

CARTWRIGHT to execute it. CARTWRIGHT had been in the habit of executing

process for the witness when the latter was unable to attend to business.

W. H. COULSON, Sr., the justice of the peace, testified, for the defense,

that on the day of the homicide he, at the instance of Horace NASH, issued a

writ of sequestration directing the seizure of the gun which DAVIS, the

deceased, then had. While the writ of sequestration was being prepared,

Horace NASH and the defendant CARTWRIGHT were present in the witness's

office. When the writ was issued the witness laid it on the table, and

either NASH or CARTWRIGHT took it up from the table, and they went off

together. Witness supposed that it was CARTWRIGHT who picked up the writ

from the table. CARTWRIGHT had frequently executed process issued by the

witness, and attended as an officer upon the witness's court. Witness could

not say how many writs CARTWRIGHT had executed, nor how many arrests he had

made, but knew that he had executed several writs, and that the people of

McDade, as well as witness, regarded him as an officer. Witness had never

specially deputized CARTWRIGHT.

Horace NASH, for the defense, testified that DAVIS, the deceased, on the day

he was killed, pledged his gun to witness for a loan of sixty dollars, but

took the gun away from where it had been left, and refused either to give it

up to witness or to repay him the money. Witness went to BISHOP, the

constable, and asked him to execute a writ of sequestration, which was being

prepared for the seizure of the gun. The constable said he was too sick to

attend to business, and asked witness to see the defendant CARTWRIGHT. The

constable and witness saw CARTWRIGHT, and the latter went with witness to

the office of COULSON, the justice of the peace, when the writ of

sequestration was issued by COULSON for the gun. CARTWRIGHT took the writ,

and as he was starting off with it, he summoned the defendant John NASH to

go with him, and they two went off on their horses together. The witness at

that time regarded CARTWRIGHT as an officer.

*3 On his cross-examination, the witness stated that he demanded of the

deceased the payment of the money, or, else, the possession of the gun which

he had pledged to witness as security for the money. Witness told the

deceased that if he did not deliver up the gun he would kill him, and at

that time the witness held in his hand a gun of the defendant John NASH, but

he made no attempt to use it. Neither of the defendants were present when

witness told the deceased he would kill him if he did not deliver up the

gun. When witness and the deceased separated, the latter went to the hotel

and got the gun, and the former went to the justice of the peace to get a

writ of sequestration for the gun. The gun had never been put absolutely in

witness's possession, but it was understood between him and the deceased

that it should remain at the hotel and stand good for the money witness had

loaned the deceased. John NASH, one of the defendants, is witness's nephew.

W. R. KELTON, for the defense, testified that he was standing on a scaffold

about breast high, and was engaged in putting up a chimney at the east end

of TOWNSEND's house, which was some fifty yards from where the shooting took

place. Witness first heard one of the parties on horseback say either "hold

up" or "do not shoot." Which of these expressions was used he could not

remember. At the same moment he saw the deceased, in PARIS's wagon, with a

shot gun elevated, and saw him shoot twice. The first shot was directed

towards the man in rear of the wagon, and the second towards the man on the

right of the wagon. Then the witness heard other shots, and judged them to

be from pistols, as these reports were different from those of the two shots

first fired. Witness was certain that the deceased fired two shots first,

and that no shots were fired before them. From where the witness stood upon

the scaffold he could see the deceased plainly; and he saw PARIS take the

gun out of the wagon after the firing. Witness immediately went to where the

firing took place. He examined the gun, but did not take the shells out of

it. He saw that the shells had been freshly exploded or snapped. In all,

there must have been five, six, or seven shots fired. Witness, however, saw

no other person shoot besides the deceased.

J. H. TANNER, for the defense, testified that his attention was first called

by hearing two shots, which, at the moment, he supposed were fired by an old

negro who was in the habit of hunting with a shot gun in the neighborhood.

Directly, however, other shots were fired, and witness immediately went down

to where they were fired. The deceased was humped over in the wagon. Witness

saw Mr. PARIS take up a shot gun as witness approached the wagon. Witness

took hold of the gun. It appeared to have been freshly fired off. Witness

examined it, and saw that the cartridges had been fired or snapped.

Defendant CARTWRIGHT told the witness not to let anyone take the cartridges

out of the gun. Some time in the course of the next day the witness and

several others examined the gun, and in it found two empty shells, one in

each barrel. Witness cautioned persons not to handle the gun, and at night

he put it in a room, and between two bed-ticks, and he was confident that no

one handled it, except in his presence, until the two empty shells were

taken out of it. The reports of the two shots first fired resembled those of

a shot gun, as they were different from those subsequently fired. On his

cross-examination, the witness said he could not see who did the firing, on

account of a room on the end of the gallery obstructing his view.

*4 James TOWNSEND testified that he was not at his home when the deceased

was killed, but returned there shortly after that occurrence. Witness asked

defendant NASH if he had suffered any damage in the affray, and NASH replied

""Only this," pointing to the sleeve of his coat, in which the witness then

saw there were a half dozen or more holes, as if made by shot.

In rebuttal, the State examined W. G. MILLER, who testified that he was

county surveyor of BASTROP county, and, about two years ago, had received a

letter from the deceased's father, requesting him to bring his chain and

compass to TOWNSEND's, where the deceased was killed. The witness went, and,

on the grounds, found not only the writer of the letter, but the then

prosecuting attorney and Mr. William PARIS. Mr. PARIS took the witness to

the spot where he said the wagon was standing when the deceased was shot.

Witness measured the distance from that spot to the chimney at the east end

of TOWNSEND's house, and found it to be one hundred and seventy-two varas on

a direct line. There were no trees intervening directly on the line, but

there were ten or twelve trees at various distances from each other and from

three to seven feet distant from the direct line.

Although one committing a homicide by his own wrongful acts produced the

necessity for killing in order to save his own life, it does not follow that

the homicide is inexcusable. Consideration must be given to the wrongful

acts by which the right of self-defense is claimed to be abridged or

forfeited.

The right of self-defense is not impaired by mere preparation for the

perpetration of a wrongful act, unaccompanied by any demonstration, verbal

or otherwise, indicative of the wrongful purpose.

G. W. JONES and J. D. SAYERS, for the appellants, filed an able brief and

argument, reviewing the evidence, the charge of the court below, and the

authorities on which they relied for a reversal.

J. H. BURTS, Assistant Attorney General, for the State:

1. The first assignment of error is not tenable. The testimony of W. H.

COULSON, to the effect that he supposed that appellant CARTWRIGHT was a

deputy sheriff, was irrelevant, and not admissible. CARTWRIGHT knew,

himself, that he was not a deputy sheriff, and if he took extraordinary

process to serve, without being an officer, he did so at his peril; and if

appellant NASH accompanied him to serve such process, he did so at his

peril. The testimony offered and excluded did not tend to show that either

of the appellants believed CARTWRIGHT to be an officer clothed with

authority to execute the process, and there was nothing in the testimony to

make it admissible.

2. The second assignment of error, viz, "The court erred in not charging the

jury the law of self-defense," is not tenable, and is not sustained by the

record. The court states to the jury, viz: "Upon self-defense or justifiable

homicide, you are charged that any party who is so attacked as reasonably to

produce a fear or expectation of death or some serious bodily harm, the

party so attacked is justifiable in taking the life of the party so

attacking." This was all that the law would justify the court, on the facts,

in charging on this point. And this court will note that the charge was not

excepted to at the time it was given, nor were additional charges asked by

appellant. And it was neither made a ground for new trial, nor was it

calculated to injure the rights of appellants.

*5 3. The third assignment of error is not tenable, viz: That the court

erred in the following portion of its charge, to wit: "You are charged that

any attempt to execute any writ or process whereby property is to be seized

by persons not authorized to execute such process is trespass. There is no

evidence before you that Dave CARTWRIGHT is an officer authorized to execute

such process. A constable cannot confer such authority upon any person, nor

can any magistrate, except in the mode pointed out by law." This charge was

not excepted to when given. But it is correct throughout. There is but one

mode of conferring authority on a private person to execute process from a

magistrate's court, and that must be upon a person of good character in an

emergency. If executed by an unauthorized person it is a trespass, as charged by the court.

There was no evidence before the jury that CARTWRIGHT was an officer

authorized to execute such process, and it was proper for the court to tell

them so. "It is the province of the judge to determine when there is or is

not any evidence as to a certain fact."

Our Supreme court has always held that where there was no evidence to a

given point, the court might so say to the jury. These are civil cases, but there is no

reason why the rule should not apply in criminal cases, as was held in

BURRELL v. The State.

But the charge was not excepted to when given, and being objected to for the

first time on the motion for a new trial, and not being calculated to injure

the rights of appellants, it will not be revised by this court; and thus

this assignment is disposed of.

4. The fourth assignment of error is not tenable, which is that the court

erred in the following portion of its charge: "If you believe from the

evidence that the defendant Dave CARTWRIGHT, accompanied by the defendant

John NASH, if acting with him, were armed, and did undertake to seize, by

virtue of a writ of sequestration, a gun in the possession of B. F. DAVIS,

then B. F. DAVIS had the right to resist such seizure, and using force

enough to prevent it; and if you further believe these defendants, being

armed, did by their conduct induce the said B. F. DAVIS to believe his

property was to be taken, or to kill him, then the said B. F. DAVIS would

have been justifiable in taking the life of the defendants; and if you

believe these defendants were placed under the necessity of taking the life

of said B. F. DAVIS under such circumstances as these, and did so kill him,

then they are not justifiable, but would be guilty of murder."

This paragraph of the charge, taken in connection with other parts of the

charge, and in view of the evidence, is correct. The parties, without any

legal authority, with drawn six shooters, assailed deceased on the highway,

for the purpose of forcibly taking from him his property, which, according

to the testimony of Horace NASH, was rightfully in his possession, and

ordered him to ""hold up" for that purpose. They were not justified in this.

They were trespassers. They were wrongdoers. Deceased had the right to defend his property and his person to the extent of slaying his pursuing assailants, and it was proper for the court so to instruct the jury. The remaining portion of this paragraph of the charge correctly states the rule, where the accused, by his or their own wrong, bring about the necessity for taking life.

*6 5. The fifth assignment of error is not well taken; which is that the

court erred in the following portions of its charge: "If you believe these

defendants, acting together, without authority of law, to execute a writ of

sequestration, were intending to seize the property of B. F. DAVIS in the

execution of said writ, and if you further believe, though armed, they made

no demonstration thereof, nor performed any act to indicate they intended to

use any arms to secure possession of the property, nor to do any bodily harm

to the possessor, then, if the said B. F. DAVIS, in resisting such seizure,

used more force than was necessary, and resorted to a greater violence than

necessary, and by such violence and use of a deadly weapon threatened the

life of the defendants, or serious bodily harm, the defendants under such

circumstances would not be justifiable in taking the life of B. F. DAVIS,

but would be guilty of manslaughter."

This paragraph of the charge, if not critically correct, in view of the

evidence, inured to the benefit of appellants, and of it they ought not to

be heard to complain; and the cause on that account should not be reversed.

The charge in this respect, however, was in accordance with law. But,

again, the charge was not excepted to when given, and was not calculated to

injure the rights of appellants.

6. The sixth assignment of error is untenable. It is: "The testimony does

not support the verdict in this: 1. There is no evidence whatever that the

defendants or either of them ever attempted to seize the gun or to execute

the writ of sequestration. 2. There is no evidence going to show that the

defendants or either of them made an assault, or indicated an intention to

assault B. F. DAVIS before the said DAVIS fired upon them with his gun."

The record contradicts this assignment in both of the stated particulars. It

was proved that appellants, without authority, took the writ in McDade, and

followed deceased with the intention of seizing the gun; that they pursued

and overtook deceased on the highway, and with drawn pistols galloped or

loped up to him and commanded him to "hold up;" which was of itself an

assault with deadly weapons.

7. The seventh assignment, which is "the court erred in overruling

defendants' motion for a new trial," is not tenable. All points raised by

this assignment have been discussed and disposed of. This motion was

correctly overruled.

8. The first special assignment made for appellant NASH is untenable; which

is: "There is no evidence going to show that he knew his co-defendant did

not have the authority to summon him to assist in the execution of the writ

of sequestration." It was his duty to know that his co-defendant had the

authority to execute the writ. But he has no cause for complaint, for the

court fairly submitted to the jury the issue as to whether or not he knew

that CARTWRIGHT had authority to execute the writ, and the question as to

whether or not he engaged in the difficulty. There was evidence that he had

his pistol drawn when first noticed in the difficulty.

HURT, JUDGE.

*7 CARTWRIGHT and NASH were convicted of the murder of B. F. DAVIS. The

verdict was for murder of the second degree, the punishment being fixed at

six years confinement in the penitentiary. It being the duty of the court to

charge the law upon every phase of the case presented by the evidence, and

to abstain from charging upon theories not supported by evidence, the

appellants insist that this rule has been violated to their injury, and ask

a reversal of the case because of this error.

Under the facts, or the different phases of the facts, of this case, is the

charge obnoxious to this objection? A detailed account of the facts

immediately attending the homicide is, by W. R. KELTON and J. H. TANNER,

given as follows:

By W. R. KELTON (a witness for the defendants): Was standing upon a

scaffold, about breast high, engaged in putting up a chimney on the east end

of TOWNSEND's house, about fifty yards from where the shooting of the

deceased took place. I first heard one of the parties on horseback say,

either "hold up" or "do not shoot," which I do not remember. Just at that

moment I saw the deceased on the wagon driven by PARIS, with a shot gun

elevated, and saw him shoot twice, first in the direction of the man to the

rear of the wagon and then in the direction of the man on the right of the

wagon; then I heard other firing from what I judged to be pistols, as the

reports were different from the two shots first fired; am sure the deceased

fired two shots first and that there were no shots fired before the deceased

fired; could see the deceased plainly from where I stood upon the scaffold;

saw PARIS as he took the gun out of the wagon after the firing took place;

examined the gun, but did not take the hulls out, but saw they had been

snapped or exploded freshly; there must have been five or six or seven shots

altogether fired; saw nobody but the deceased shoot.

By J. H. TANNER (a witness for defendants): Was sitting on the gallery when

the shooting in which DAVIS was killed occurred; my attention was first

called by hearing two shots fired. I first supposed that they were from the

shot gun of an old negro, who was in the habit of hunting near, but directly

other shots were fired. I immediately went down to where the firing

occurred; the deceased was humped over in the wagon; saw PARIS take a shot

gun up as I went toward the wagon; took hold of it and it appeared to have

been freshly fired; examined the gun and saw that the cartridges had been

fired or snapped; CARTWRIGHT told me not to let anyone take the cartridges

out of the gun. Some time during the next day several of us examined the gun

and found two empty shells in the gun, when I put it in a room at night and

between two bed ticks, and am confident that no one handled it, except in my

presence, until the two empty shells were taken out. The sounds of the two

shots fired first when the killing took place resembled those of a shot gun,

as they were different from those afterwards fired; could not see who did

the firing, as there was a room on the east end of the gallery, and between

the place where the firing occurred.

*8 The facts relied upon by the State are, in substance, these: CARTWRIGHT

and NASH, neither being an officer, left McDade with a writ of sequestration

against the deceased for a shot gun. The deceased, B. F. DAVIS, had left

McDade with said gun, going in the direction of BASTROP, and within a half

mile of McDade he overtook the witness PARIS, who was driving a wagon drawn

by four mules. DAVIS got in the wagon, and when they had traveled about

three miles, and were within about one hundred yards of the house of James

TOWNSEND, CARTWRIGHT and NASH rode up from the direction of McDade, in a

gallop. CARTWRIGHT came up on the right hand side of the wagon; NASH was to

the rear of the wagon. CARTWRIGHT said, "hold up there." CARTWRIGHT had a

pistol in his hand. PARIS then looked around to stop his mules, and the

shooting commenced. Looking back he saw CARTWRIGHT shoot once. There had

been shots fired before he looked around; * * * several shots were fired

from behind his back. Witness PARIS did not see NASH until the shooting was

over. NASH then had a pistol in his hand. Witness thinks there were from

three to five shots fired-- probably more. Two of the shots hit the end of

the wagon bed, one went through his clothing, and another hit one of the

mules. DAVIS was killed in this affray, being shot twice in the body.

The witness PARIS, upon being cross-examined, swore that "he did not

distinguish any difference in the sounds of the different shots;" but his

evidence taken before the examining court being read to him, in which it

appeared that he swore "that there were sounds that seemed different shots

from the pistol," he stated that he would adhere to what he said in his

statement made before the examining court, as it was the next day after the

killing, when the facts were fresh in his mind, and his recollection was

better than now.

This statement, we think, will suffice to present the main facts in the

case, as well as the issues to be passed upon by the jury.

After charging the law applicable to murder of both degrees, the learned

judge below, upon the issue of justifiable homicide, submitted to the jury

these instructions:

"Upon self-defense or justifiable homicide, you are charged that any party

who is so attacked as to reasonably produce a fear or expectation of death

or serious bodily harm, the party so attacked is justifiable in taking the

life of the party so attacking.

In this connection, you are further charged that whenever a party has

produced by his own wrong acts any necessity to take human life in order to

preserve his own life, he can not be excused or justified.

You are charged that any attempt to execute any writ or process whereby

property is to be seized, by persons not authorized to execute such process,

is trespass.

If you believe from the evidence that the defendant Dave CARTWRIGHT,

accompanied by the defendant John NASH, if acting with him, were armed, and

did undertake to seize, by virtue of a writ of sequestration, a gun in the

possession of B. F. DAVIS, then B. F. DAVIS had the right to resist such

seizure, and using force enough to prevent it. And if you further believe

these defendants, being armed, did by their conduct induce the said B. F.

DAVIS to believe that his property was to be taken, or to kill him, then the

said B. F. DAVIS would have been justifiable in taking the life of the

defendants. And if you believe these defendants were placed under the

necessity of taking the life of said B. F. DAVIS under such circumstances as

these, and did so kill him, then they are not justifiable, but would be

guilty of murder.

*9 If you believe these defendants, acting together without authority of law

to execute a writ of sequestration, were intending to seize the property of

B. F. DAVIS in the execution of said writ, and if you further believe,

though armed, they made no demonstration thereof, nor performed any act to

indicate they intended to use any arms to secure possession of the property,

nor to do any bodily harm to the possessor, then, if the said B. F. DAVIS,

in resisting such seizure, used more force than was necessary and resorted

to a greater violence than necessary, and by such violence and use of a

deadly weapon threatened the life of the defendants, or serious bodily harm,

the defendants, under such circumstances, would not be justifiable in taking

the life of the said B. F. DAVIS, but would be guilty of manslaughter.

If you believe that Dave CARTWRIGHT did attempt to seize the property of B.

F. DAVIS under a writ of sequestration, and if you believe John NASH was

present, and honestly believe said CARTWRIGHT had authority to execute said

process, and if in the proper execution thereof the said NASH's life or that

of CARTWRIGHT became reasonably threatened, or some serious bodily harm to

either, did shoot at said B. F. DAVIS to avert and prevent such threatened

danger to himself or to Dave CARTWRIGHT, or if you believe the said NASH was

present, yet if he did not engage therein, you will acquit him."

The first charge cited enunciates a proposition to which we cannot assent.

This is the proposition: That whenever a party has produced by his own wrong

acts any necessity to take human life in order to preserve his own life, he

cannot be excused or justified.

What character of wrong acts must produce the necessity to take life?

Suppose the wrong acts were not calculated to produce the necessity, but did

have this effect? Again, suppose the wrong acts were not intended to

"produce the necessity" by the wrong-doer? Would the party guilty of the

"wrong acts" be guilty of culpable homicide, who, to save his own life,

takes the life of another under the supposed cases?

Just here it is necessary for us to consider the nature or quality of the

act, the doing of which will so far abridge one's right of self-defense that

if he kill another, although to save himself from death or great bodily

harm, he will yet be guilty of a felonious homicide in some of its degrees.

It would be quite difficult to lay down a general rule by which all wrongful

acts could be tested and adjudged sufficient or not sufficient to deprive

one of the complete right of self-defense. This we will not attempt, but

will at present confine ourselves to the conclusions reached by our

examinations of quite a number of cases. From these cases we conclude that

the doing of the following acts is held so far to abridge a man's right of

defense that if he therefore kill another he cannot be acquitted of all

crime:

1. Using provoking language or resorting to any other device in order to get

another to commence an assault so as to have a pretext for taking his life,

or to have a pretext for inflicting on him bodily harm.

*10 2. Provoking another for the purpose of bringing him into a quarrel, so

that an affray be caused. (SELFRIDGE's case, H. & T. on Self-Defense, p.

24.) But in SELFRIDGE's case, though this proposition is stated generally,

it is most clearly stated that no words nor libelous publications, however

aggravating, will deprive one of the right of defense if in consequence of

the same he is attacked.

3. Agreeing with another to fight him with deadly weapons.

5. Going to the place where another is, with a deadly weapon, for the

purpose of provoking a difficulty, or with the intent of having an affray.

The doing of the acts contained in the former illustrations will deprive the

party of the right of a complete or full defense.

There is, however, another very important question presented in the fifth

proposition. Suppose that a person should go armed to the place where

another is, intending to provoke a difficulty, but says nor does anything to

the other at all, or says nor does anything to the other tending to show

that his purpose was to provoke him to a difficulty. Will the intent with

which he went, though nothing said or done by him was intended or calculated

to provoke the other, deprive him of the right of self-defense? By

consulting the cases we will find that there was some act or word done or

said tending to provoke the other.

Let us take the NEELEY case. CASSADY, the party killed, and NEELEY, lived on

adjoining farms, the former with his mother. The parties were not on

friendly terms. The fences around CASSADY's farm were bad. NEELEY's stock

broke through occasionally and were injured by dogs or otherwise. On the

morning of the day of the homicide, NEELEY, believing that his hogs were

being injured by dogs, went with his gun to the field where some children

belonging to the CASSADY family were, and shot the dogs. After this and late

in the afternoon, hogs were again heard in the field, apparently being

worried by dogs. NEELEY hurried there with his gun, and pursued the sister

of CASSADY and the children through the field in the direction of the house.

On their return home, upon telling their story, CASSADY, with his mother and

sister, left the house and went down to the field, having with him a small

rifle. NEELEY in the meantime had left the field and gone in an opposite

direction from the other parties, perhaps a distance of sixty or seventy

rods. The other parties were passing along a path inside of the farm. At

this time, some of the witnesses say that a shot was fired in the field,

while others heard nothing of it. NEELEY, either because he heard a shot or

saw CASSADY and his mother and sister, or for some other cause not

developed, turned and walked back to where they were. When within a few feet

of them, and after a few words had passed between them, the prisoner shot

and killed CASSADY.

*11 According to the testimony of some of the witnesses, who were some

distance off, there was first heard the sharp crack of a rifle, then,

instantly, the hoarser sound of a shot gun, and then, almost as quick, a

third shot like the second. NEELEY fired a small double barreled shot gun;

and the third shot was at a dog, according to some of the witnesses, and,

according to others, at Mrs. CASSADY. The theory of the defense was

justifiable homicide.

Under this state of facts, the court charged the jury that "If the jury

believed, from the evidence, that the defendant brought on the difficulty,

by voluntarily returning to the vicinity of the deceased with a deadly

weapon, for the purpose of provoking a difficulty, his plea of self-defense

would be of no avail, and in that case it would make no difference who fired

the first shot." Under the surrounding facts of this case, this charge was

correct. NEELEY had shot the dog; had chased, but a short time before the

killing, with a gun, CASSADY's sister and the children from the field; and

when he approached them the last time, he did not walk in an ordinary gait,

but "approached rapidly." These acts, leaving out of the case what was said

in the words which passed between him and CASSADY just before the killing,

were not only intended, but were evidently calculated to provoke a

difficulty; and NEELEY could but have known that an affray would be the

result when he rapidly returned with his gun to where these folks were.

BENHAM's case was as follows: SHEPARD, the deceased, was at the creek,

loading sand. BENHAM came up on the opposite side with a gun, and commenced

talking about cattle. He said cattle were troubling him, and if they

continued he would dog them. SHEPARD told him to dog them as much as he

pleased, but not to cross the creek and drive them off with a horse. BENHAM

told him that he, SHEPARD, had shot cattle, and now it was his turn. SHEPARD

told him he had shot no cattle, and if he told him so again he would whip

him. BENHAM repeated that he had shot cattle, and he, BENHAM would shoot

too; and SHEPARD started across the creek towards him. As he was almost

across the creek BENHAM met him with a gun, and pointed it at his, SHEPARD's

breast. SHEPARD sprang out of the water, took hold of the gun to push it

down, and it was discharged into his thigh. This statement is that which was

relied upon for conviction.

In commenting upon the case, Judge DILLON makes this remark, bearing upon

the question in hand: "Nor can the defendant get the benefit of the plea of

self- defense if he sought the deceased with a view to provoke a difficulty,

or to bring on a quarrel;" and he cites NEELEY's case in support.

Here again we find that there was also something else besides going to the

place where the person was, with a deadly weapon, for the purpose of

provoking a difficulty. BENHAM evidently desired a difficulty, and did that

which was calculated to produce one. Hence his acts, coupled with what he

said to SHEPARD, were very properly held to be such provocation as would,

when forced to save his life, defeat his right to a perfect defense to the

homicide committed under such circumstances. But NEELEY's case furnishes no

support to the latter part of Judge DILLON's proposition, to wit: "or to

bring on a quarrel." This proposition is in direct conflict with SELFRIDGE's

case, and if it has any support from any source we have not been able to

find it. As stated, we do not believe it sound. We are of the opinion that

Judge DILLON had reference to the principle enunciated in our first

proposition, namely, "using provoking language," or resorting to any other

device, in order to get another to commence an assault so as to have a

pretext for taking his life. This principle we think sound and just. He who

resorts to such means, or to any means, to provoke a difficulty, with a view

to take the life of his victim, is not only guilty of murder, but murder of

the first degree.

*12 Can this be said of a person who merely goes to another with intent to

provoke a quarrel? We think not, unless the ultimate object or intent is to

take the life of the party, or commit a felonious assault in some of its

grades. In SELFRIDGE's case it was held that: "No words spoken, or libelous

publications, however aggravating, will compromit his complete right of

defense." This should be modified; for we have seen that if the words were

spoken with the intent to provoke an assault for the purpose of having a

pretext for taking his life, he would be guilty of murder. There is a vast

difference between this proposition and that stated by Judge DILLON, to wit,

""to bring on a quarrel." While we might cite a hundred cases bearing upon

this subject, but little could be learned of value so long as the principle

which underlies the whole question is not correctly understood.

What then is the principle? In BROOM's Legal Maxims, page 255, it is said:

"A man may not take advantage of his own wrong to gain a favorable

interpretation of the law. He seeks the law in vain who offends against it."

It is upon the plain principle, said WRIGHT, Judge, in NEELEY's case, "that

one can not willingly and knowingly bring upon himself the very necessity

which he sets up for his defense." It would follow, therefore, that the

conduct of the party must show that he knowingly and willingly used

language, or did acts which might reasonably lead to an affray or a deadly

conflict; and that something besides merely going to the place where a

person slain is, with a deadly weapon, for the purpose of provoking a

difficulty, or with the intent of having an affray, is required in order to

constitute such wrongful act. But it is not necessary that the additional

acts or words should be done or said at the time of the homicide. (NEELEY's

case.) The former conduct of the defendant towards the party slain, with all

of the attending circumstances occurring before, and in connection with the

fact that he went to the person slain, and his language and bearing toward

him at the time of the homicide, may, and frequently do, constitute that

character of provocation which estops defendant from pleading the necessity

which otherwise could be interposed.

But, reduced to the exact proportion of this case, the question is this:

Suppose that a party without authority, not being an officer, rides rapidly

up to another, with pistol in hand, intending to take his gun or other

property by virtue of a writ, but says nothing, nor does any act, tending to

show an immediate intention to execute the writ; will he be denied the right

of defense, if he kill to save his own life? Will the fact that he thus

approached the other, with pistol in hand, compromit his right of complete

defense? He is armed, has the intent, and rapidly approaches, but says

nothing nor does any acts tending to show the immediate intention to

consummate the wrongful act.

*13 Bearing directly upon this question, Mr. BISHOP says: "Between

preparation for the attempt and the attempt itself there is a wide

difference. The preparation consists in devising or arranging the means or

measures necessary for the commission of the offense. Attempt is the direct

movement towards the commission, after the preparation is made. To

illustrate: A party may purchase and load a gun, with the declared intention

to shoot his neighbor, but, until some movement is made to use the weapon

upon the person of his intended victim, there is only preparation and not an

attempt."

"The movement to use the weapon upon the victim need not be the last

proximate act prior to the consummation of the offense. If it be the first

of a series of steps towards the execution--a commencement of execution--it

will suffice."

Now it must be borne in mind that there was no prior conduct or previous

difficulties or ill feeling between any of these parties, connecting itself

with the acts immediately attending the homicide, as was the case in the

NEELEY case. Hence, can the acts of these defendants at the time of the

homicide, without color from any other source, be held such provocation as

will deprive them of the right of defense? Are they such acts (standing

alone) as will in law have this terrible effect? Are defendants or either of

them by these acts to be adjudged felons, although they took the life of

DAVIS to save their own? We think not.

As before intimated, immediate acts must condemn; for there is a perfect

want of any other acts, malice or bad blood. In fact, it was the merest

accident that CARTWRIGHT was sent with the writ, or that NASH was summoned

by him. DAVIS did not know that they had the writ, but from his position in

the wagon and the manner in which he constantly held his gun, he was

evidently expecting some one in pursuit. And just here it may be observed

that his attitude in the wagon, and the position in which he held the gun,

may very satisfactorily account for CARTRIGHT having out his pistol.

There being no such provocation as would compromit defendants' right of

defense, and there being no attempt to execute the writ, was it proper for

the learned judge below to assume in his charge these phases of the case? We

are clearly of the opinion that it was not. The evident effect of such a

course is to impress the jury with the belief that the acts of defendants

were such provocation, and also that their acts constituted an attempt to

seize his gun. With such belief the jury could not have consistently

acquitted defendants or either of them. If these defendants, whether

officers or not, charged down upon DAVIS and commenced firing upon him, they

are guilty of murder at least; and if the jury so believed, they should have

convicted them of such offense. But, on the other hand, if DAVIS commenced

the battle, and defendants fired in their complete self-defense, they should

not be convicted, and the jury should have been told so, untrammeled with

any such condition as was done in this case.

*14 We do not think that the other assignments relied upon for a reversal

are well taken. For the errors in the charge of the court, the judgment is

reversed and the cause remanded.

Reversed and remanded.

=================

Tex.Ct.App. 1883.

FERRIER GARCIA v. THE STATE.

15 Tex.App. 120, 1883 WL 8991 (Tex.Ct.App.)

(Cite as: 1883 WL 8991, *1 (Tex.Ct.App.))

APPEAL from the District Court of BASTROP. Tried below before the Hon. L. W.

MOORE.

*1 The indictment in this case charged the appellant with the theft of two

horses, the property of E. L. NORRIS, on the sixteenth day of May, 1883. The

penalty imposed by a verdict of guilty was a term of eight years in the

penitentiary.

E. L. NORRIS testified, for the State, that he lived about twenty miles west

of San Antonio, in Bexar county, Texas. On the night of May 15, 1883, he

turned his two gray horses out to graze near his place, after having worked

them all that day. One of them was branded with an &, reversed, on the left

shoulder; the other with the letters cc on the left shoulder, and the device

of a heart inverted, surmounted with an upturned B, on the left hip. One of

them was belled. The witness hunted for these two animals all of the next

day, when, not finding them, he became convinced that they had been stolen,

and accordingly addressed to the several counties postal cards giving

descriptions of them. After a time he received a letter from the sheriff of

Caldwell county, stating that two horses answering the description had

passed through Lockhart, going towards BASTROP. Ten days or two weeks later

the witness received a letter from sheriff JENKINS, of BASTROP county,

stating that the horses were then in BASTROP. Witness went to BASTROP

immediately, and found his horses in the possession of sheriff JENKINS, who

delivered them to the witness. These animals were taken without the

knowledge or consent of the witness. The witness never saw the defendant

before he saw him at BASTROP, at the time he recovered his horses.

Mat. LUNA testified, for the State, that he lived on the Brooks DUVAL place,

near the town of BASTROP. On or about May 20, 1883, the defendant and

another Mexican named Tomas GONZALES came to the witness's house with two

gray horses corresponding to the description given by the witness NORRIS.

They remained at the witness's house two or three days, during which time

the witness purchased the horse branded & from the defendant, and the other

horse from Tomas GONZALES, and received from them respectively the following

bills of sale:

"BASTROP, May 22, 1883.

This is to certify that I have bargained, sold and delivered to Mat. LUNA

one (1) gray horse branded cc on the left shoulder, and (B turned

horizontally over an inverted heart) on the left hip, about eight years old,

for the sum of $45.00. This title I monarch and defend against any person

claiming the same.

Tomas GONZALES.

Witness: H. C. KLEINERT."

"BASTROP, BASTROP Co., May 22, 1883.

This is to certify that I have bargained, sold and delivered to Mat. LUNA,

one (1) gray horse, 14 hands high, 7 years old, branded & on the left

shoulder, for the sum of $40.00. This title I monarch and defend against any

person claiming the same.

Ferrier GARCIA.

Witness: H. C. KLEINERT."

These horses the witness afterwards surrendered to Mr. JENKINS, the sheriff

of BASTROP county. The defendant told the witness that he had traded for the

horse branded & on the left shoulder, about fifteen miles beyond San

Antonio. He did not claim or sell the other horse, but was present when

Tomas GONZALES sold him to the witness. Defendant and GONZALES left the

witness's house together. The witness knew the defendant several years ago

at San Antonio.

*2 W. E. JENKINS, sheriff of BASTROP county, testified for the State, that

he received a postal card from NORRIS, giving a description of the horses

and saying that they were stolen, and, finding them in the possession of

Mat. LUNA, he seized them and notified NORRIS, who came to BASTROP and got

them. He pursued and arrested the defendant and Tomas GONZALES at Giddings,

Texas.

The defendant introduced in evidence the following bill of sale:

"SAN ANTONIO, May 17, 1883.

Know all men by these presents, that I have this day sold to Mr. Fernando

Rodriguez GARCIA, one gray horse, about 14 hands high, branded thus, &

(reversed) on the left hip, sold for the sum of $25.00, twenty-five dollars,

money received to my satisfaction in presence of witnesses, title of said

horse I guarantee and defend.

J. R. SMITH.

Witness:

Fran'co HERNANDEZ,

Nicolas SANDOVAL,

Ramon CASAS."

NORRIS, re-introduced by the State, testified that when he came to BASTROP

for his horses, he attended the examining trial of the defendant and

GONZALES. They exhibited on that trial a bill of sale, giving correct

descriptions of the two horses. That bill of sale was not the bill of sale

exhibited on this trial. The two bills of sale were on different kinds of

paper, and bore different dates. The first one--the one exhibited on the

examining trial--correctly represented the & brand on the left shoulder.

That now introduced incorrectly represents that brand to be on the left hip.

The witness could not say that the defendant had and produced the bill of

sale described on the examining trial. It may have been produced by Tomas

GONZALES.

W. E. JENKINS, recalled, testified for the State that the bill of sale now

offered in evidence was not the same that was produced on the examining

trial. The one offered in evidence before the examining trial was on

different paper and was written in a different handwriting. According to the

recollection of the witness, that bill of sale embraced both horses. Witness

could not recollect whether that bill of sale was produced by the defendant

or by Tomas GONZALES. It was not returned to either the defendant or

GONZALES, but is now lost.

The motion for new trial assigned as error the refusal of the court to grant

the appellant a continuance, on the showing disclosed in the opinion of

this court.

A continuance, in a criminal case, should be granted because of the absence

of a witness whose testimony clearly was material to the defense; the facts

set forth in the application showing ground for a continuance, and appearing

to be probably true.

Where the prosecution relies solely upon circumstantial evidence, the court

must always instruct as to the law controlling such evidence.

No brief for the appellant has reached the Reporters.

J. H. BURTS, Assistant Attorney General, for the State.

WILLSON, JUDGE.

On the night of the fifteenth of May, 1883, two horses were stolen from E.

L. NORRIS, in Bexar county. On the twenty-second day of May, 1883, these

horses were sold to one LUNA, in BASTROP county. One of the horses was sold

to LUNA by the defendant and the other by a Mexican named GONZALES, and they

executed bills of sale, respectively, to LUNA. Defendant was indicted and

convicted for the theft of both horses. The indictment was returned into

court October 17, 1883, and the trial was had on the twenty-fourth day of

October, 1883.

*3 Defendant made an application to continue the case, which was refused.

This continuance was sought because of the absence of one Ramon CASAS,

alleged to be a material witness in behalf of defendant, and who resided in

Bexar county, Texas. On the seventeenth day of October, 1883, the day on

which the indictment was returned into court, the defendant applied for and

obtained an attachment for this witness to Bexar county, which attachment

was returned endorsed by the sheriff of Bexar county as follows: "Came to

hand on the twentieth day of October, 1883, and not executed. The within

named person is not to be found, as he is temporarily absent from the

county. Might return at any time; and, as the writ is returnable instanter,

I cannot hold it over."

In his application, defendant stated that he expected to prove by this

witness that he, defendant, purchased, in good faith, the horse he sold to

LUNA from one J. R. SMITH, on the seventeenth day of May, 1883, two days

after said horse was stolen, and five days before he sold the same to LUNA;

and that said SMITH executed to defendant a bill of sale of the horse, which

bill of sale said witness signed as a witness; and that said witness was

present when defendant purchased the horse. In all respects the application

complied with the requirements of the law, and accompanying it, and made a

part of it, was a copy of a bill of sale from one J. R. SMITH to the

defendant, dated May 17, 1883, witnessed by Ramon CASAS, and describing the

horse sold by defendant to LUNA, and which was one of the stolen horses.

There can be no question but that the testimony of this witness was material

to the defendant's defense. Were the facts set forth in the application

probably true? If so, it was error to refuse defendant's motion for a new

trial.

There is nothing in the evidence adduced on the trial which is inconsistent

with, or which renders improbable, the claim of the defendant that he

purchased the horse he sold to LUNA from one SMITH. It is not shown that he

had possession of the other stolen horse, or was connected with the theft of

it. any further than that he was in company with GONZALES, who claimed,

also, to have bought it from another party. We can see no reason why it

should be held that the facts set forth in the application for a continuance

were not probably true. We think the court erred in refusing defendant's

motion for a new trial.

This being a case of purely circumstantial evidence, it was incumbent upon

the court to instruct the jury upon that character of evidence, which the

court failed to do.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

======================

Tex.Ct.App. 1887.

ROWLETT v STATE.

4 S.W. 582, 23 Tex.App. 191

Appeal from district court, Williamson county.

This conviction was in the second degree, for the murder of James DAVIS, on

the fifteenth day of June, 1886. A term of five years in the penitentiary

was the penalty awarded.

Stated in brief, the proof shows that the deceased, who was the step-father

of Miss Mattie BAINS, and the brother-in-law of the defendant, left his old

home, in BASTROP county, Texas, on the fourteenth day of June, 1886, to

remove to Bell county, taking Miss BAINS and his own smaller children with

him; the party traveling in a wagon drawn by four horses. On the evening of

the thirteenth, Miss Bains sent word to her grandmother, defendant's mother,

that she did not want to go to Bell county with DAVIS, but wanted to take up

her abode with her. Defendant, on the morning of the fifteenth, ascertained

that Miss BAINS had gone off with deceased. He, and a relative named DUNBAR,

followed DAVIS, with the avowed purpose of taking Miss BAINS back to her

grandmother's, if she was being taken off against her will, but not to

interfere if she was going voluntarily. Defendant and DUNBAR overtook

deceased's wagon as it was going into camp at noon on the next day.

Defendant and deceased addressed each other in friendly terms, and, while

the latter was gone with two of his horses for water, defendant asked Miss

BAINS if she was going off voluntarily. She replied that she was, and

defendant remarked that he had nothing more to say. When DAVIS returned with

the horses, defendant asked why he did not take the children by to bid their

relatives adieu. DAVIS asked in reply angrily, and with an oath, if that was

why defendant followed him. Defendant replied that it was. The two then

approached each other. Defendant then stepped back, and DAVIS, having

nothing in his hands, continued to advance. Defendant ordered him three

times to stop. DAVIS continuing to advance, (though making no hostile

demonstrations,) the defendant drew his pistol and shot DAVIS dead. A large

butcher knife, such as it was shown by the evidence, DAVIS usually carried

in his belt, was found on the ground near the body, after the homicide.

Objection to irregular or insufficient manner of presenting and entering

indictment must be raised by motion to quash and exception to denial of the

motion. It cannot be taken for the first time on appeal.

In a trial for murder, the fact that a butcher knife is found near the

deceased, under such circumstances that it might well have been dropped by

somebody else, coupled with the evidence of several witnesses that when

deceased was killed he was unarmed, and that directly afterwards the

defendant, in speaking of the killing, said nothing about the knife, but

forthwith fled the country, held not to support the plea of self-defense, so

as to vitiate a conviction of murder in the second degree.

The clerk of the trial court is not required to enter upon his minutes the

name of the offense charged against an accused, and the fact that he

misnamed the offense on his minute book cannot vitiate the indictment.

An indictment which concludes with the phrase, "against the peace and

dignity of the state," is not vitiated by any words following that phrase,

if they form no part of it.

G. W. JONES and FISHER & TOWNES, for appellant. Asst. Atty. Gen.

DAVIDSON, for the State.

WILLSON, J.

It is objected to the indictment that it does not conclude, "against the

peace and dignity of the state," and is therefore a nullity. The original

indictment is before us, and we find that the words, "against the peace and

dignity of the state," follow immediately after the charging portion of the

indictment, and on the last words used by the pleader. In the next line

below these words, and without any grammatical or other connection

therewith, in a different handwriting from that of the indictment, are the

words, "A true bill," followed immediately, and in the same handwriting, by

the official signature of the foreman of the grand jury. We hold that these

interpolated words, "A true bill," do not vitiate the indictment. They are

no part of the indictment; are outside of and wholly disconnected with it.

They are no part of the conclusion of said indictment, and in this respect

the case differs materially from that of HAUN v. State as

will be seen by reference to that decision. The language of that decision

may be, and we think is, too broad and unqualified, but the conclusion

arrived at with respect to that particular indictment was, we still

hold, correct; for the reason that the words following the conclusion proper

were connected with said conclusion in the same sentence, and manifestly

formed a portion of said sentence; and therefore the indictment upon its

face did not conclude as required by the statute and the constitution. We

are of the opinion that, when the indictment upon its face shows the

pleader's conclusion to be "against the peace and dignity of the state,"

these words forming a complete sentence, no words following thereafter, and

not forming a part of said sentence, can vitiate the indictment.

Another objection to the indictment is for the first time presented in this

court. It is that it affirmatively appears from the record that the said

indictment was not presented in open court by the grand jury. The record

shows the file number of the cause in the district court to be 706; the

charge in the indictment being murder. The entry upon the minutes of the

said court of the presentment by the grand jury of indictment No. 706 names

the charge in said indictment, "An assault with intent to kill." Upon its

face the indictment shows that it was presented in the district court by a

legal grand jury. This recital in the indictment must be presumed to be true

until it is shown to be otherwise. It devolves, therefore, upon the

defendant to show that the indictment was not in fact presented in court.

How and when does the law permit him to make such question? We answer, by

exception to the indictment, which exception must be made before a plea of

not guilty is entered. It cannot be entertained when made for the first time

in this court.

But even if the objection now for the first time urged had been made in

limine in the trial court at the proper time, and in the proper manner, we

do not think it would have been a valid objection to the indictment. It is

only required that the style of the action and the file number of the

indictment shall be entered upon the minutes. In this instance this requirement was fulfilled. It was not essential that such entry should name the offense charged in the indictment. Not being essential to the sufficiency of the entry to name

the offense charged, it was an unnecessary act on the part of the clerk to

do so,and should not be held to vitiate the indictment, although the

offense named in said entry is not the offense charged in the indictment.

It is earnestly contended by counsel for appellant that the evidence is

insufficient to sustain the conviction, in this: that the evidence in

support of the plea of self-defense is at least cogent enough to raise a

reasonable doubt of the guilt of the defendant. In this view of the

evidence we do not agree with counsel. We do not think the facts show, or

even strongly tend to show, that character of self-defense which would

either justify or reduce the homicide to manslaughter. If the deceased, at

the time he was shot, had been advancing upon the defendant in an angry

manner, armed with a butcher- knife, then, indeed, would defendant's theory

of self-defense be established. But, unfortunately for the defendant, the

evidence does not disclose such a state of the case. On the contrary, all of

the eye-witnesses to the transaction testified on the trial that the

deceased was unarmed at the time he was shot by the defendant. They were in

positions where they could and did see the deceased at the time, and they

saw no knife or other weapon on or about his person.

The only evidence which even remotely tends to prove that the deceased was

armed with a butcher-knife is that such a knife was found upon the ground

where the homicide occurred a short time after the difficulty, and that this

knife belonged to the deceased. How, when, or by whom the knife was placed

upon the ground is not disclosed. Deceased was at the time of the occurrence

traveling in a wagon with his family, consisting of several small children,

and had stopped to camp for dinner. These children were around the wagon,

and may have had and dropped the knife where it was found. Deceased may

himself have dropped it before the difficulty occurred. After defendant had

shot deceased, witness DUNBAR said to defendant: "You have killed DAVIS!"

Defendant replied: "Yes; he ought to have kept off of me." Nothing was said

by defendant at that time about the deceased having a knife. If in fact

deceased had been advancing upon the defendant with a butcher-knife in his

hand, and defendant had seen that he was thus armed, it is passing strange

that he did not mention the fact to DUNBAR at the time of said conversation,

and call the attention of that witness to the knife. Instead of doing so,

however, he mounted his horse, and fled the country, and avoided trial for a

number of years.

As to the charge of the court, it is full and correct, and fair and

liberal to the defendant, presenting clearly the law applicable to every

phase of the case made by the evidence.

We are of the opinion that there is no error in the conviction, and the

judgment is affirmed.

=====================

Tex.Ct.App. 1890.

WICKS ET AL. v STATE.

13 S.W. 748, 28 Tex.App. 448

Appeal from district court, BASTROP county; H. TEICHMULLER, Judge.

On the 19th day of October, 1889, an indictment was preferred and returned

by the grand jury of BASTROP county against Ike WILSON, Runnels WILLIAMS,

Bob THOMPSON, Jesse JOHNSON, O. W. WICKS, York ALDRIDGE, Fountain MOORE, Ben CLARK, George JONES, and Milton NOBLES, for the murder of George SCHOEFF and Alex. NOLAN, in said county, on the 13th day of June, 1889. On the 6th day of November, 1889, defendants were duly arraigned, and, plea of not guilty being entered, a severance was had upon motion of defendants, and the

defendants O. W. WICKS, George JONES, and Milton NOBLES, appellants herein,

were placed upon trial together, but separately from their co-defendants.

Being convicted of murder in the second degree, the punishment of appellant

O. W. WICKS was fixed at 20 years' confinement in the penitentiary, and that

of appellants George JONES and Milton NOBLES at confinement in the

penitentiary for 17 years each. WICKS, a negro, was justice of the peace,

before whom the case of State v. Addie LYTTON, for assault and battery, was

set for hearing on June 13, 1889. The white people, fearing that LYTTON

would not be accorded a fair trial, went armed to the place of trial. When

the case was given to the jury, LYTTON walked out of the house, and it was

then that the firing commenced. The material part of the testimony of West

CRAFT, for the state, was as follows: "I was at Cedar Creek on the day of

the shooting. I got there about 2 or 2:30 o'clock. I got down off my horse,

and was talking with Jesse JOHNSON and some boys. While sitting there,

Cuffie WILLIAMS came up, beckoned, and called me. I got on my horse, started

towards him, and we met. As we started off, O. W. WICKS, defendant, called

me, and told me he wanted to see me. WICKS was getting out one of the

windows on the side of the court-house next to Dick LEMUEL's. I went to him,

and he came up to me, and asked me where I was going; I still being on my

horse. He whispered to me, and told me not to go away, and then made some

remarks about the white people being there. In the conversation, WICKS said

for me not to go away; that he had me deputized to help protect the court;

that we would bring the thing off directly, and that he wanted me to stay

there, and wanted the negroes to hang together, and 'kill as many of the

devilish white folks as they do of us.' Cuffie WILLIAMS and I then started

off towards Givensville. I heard Ike WILSON halloo: 'Halt,' or 'Come back.'

About that time, I looked back, and saw Ike throw up his gun; and a fire was

made, but I cannot say who made it. The shooting then all began, and I shot,

too. I shot in every direction. On the first Saturday after the difficulty,

I was arrested at BASTROP, and WICKS was at the court-house when I was

brought down there. Mr. FOWLER was acting for the state, and fixed up the

papers against me. When first arrested, I requested to have a private talk

with Mr. FOWLER; and WICKS was there, or came in there shortly afterwards.

While in the sheriff's office talking with Mr. FOWLER, WICKS came in, leaned

over the table, and whispered to me, and told me not to give him away, or

tell anything on him; and I told him I did not know anything to tell. When

he left, Mr. FOWLER asked me what he said, and I told Mr. FOWLER." The

theory of the defense was that the whites had threatened to interfere with

the officers of the court in the discharge of their duties, to rescue Addie

LYTTON, whose trial for assault was pending before the defendant WICKS, to

accomplish their purpose by force, and to kill Ike WILSON if necessary,

etc.; that they congregated in large numbers, several of them being armed,

and took possession under a mesquite tree a short distance from the front of

the house; that, when the jury in LYTTON's case retired to deliberate on the

verdict, LYTTON left the house; that WILSON, the constable, followed, and

called to him to await the verdict of the jury; that the whites then rose in

mass at the cedar tree, handed LYTTON a gun, and opened fire on WILSON; and

that WILSON did not return the fire until he had been fired upon at least

twice.

On the trial of certain negroes for the murder of certain white men, a white

man testified that a negro had told him that he heard one of the negroes say

that they were going to kill off the whites. Held incompetent, as hearsay,

and prejudicial to defendants.

On the trial of negroes for the murder of white men, testimony as to

statements made by some of the negroes, not on trial, in the absence of

defendants, was hearsay as to defendants.

On the trial of certain negroes for the murder of certain white men,

testimony as to statements made by some of the negroes, not on trial, in the

absence of defendants, was hearsay as to defendants, and incompetent, in the

absence of proof of a conspiracy to murder between defendants and those who

made the statements, and that the statements were made pending the

conspiracy, in furtherance of the common design.

A combination or conspiracy must be established before the acts,

declarations, or confessions of one alleged conspirator can be given in

evidence against another.

Where the state introduces evidence of accomplices, the refusal of the court

to charge that a conviction cannot be had on the uncorroborated testimony of

accomplices is ground for reversal.

On the trial of certain negroes for the murder of certain whites killed in a

fight between whites and negroes at the trial of one L., before a negro

justice of the peace, the theory of the state was that the negroes started

the difficulty in pursuance of a previously formed conspiracy, and there was

testimony tending to sustain this theory, as well as that of defendants that

the whites started the trouble pursuant to a previous plan to interfere with

the court. Held that, for the purpose of showing that the whites went there

with innocent motives, which would tend to show that they were not the

assailants, it was a proper question for the state to ask one of them why he

went there armed, and that his answer, "We went there to see that no harm

came to L.," was competent.

G. N. JONES and H. M. GARWOOD, for appellant. Asst. Atty. Gen.

DAVIDSON, for the State.

WILLSON, J.

O. W. WICKS, George JONES, and Milton NOBLES, and several others, were

jointly indicted for the murder of George SCHOEFF and Alex. NOLAN. The three

above- named defendants severed from their co-defendants, and were tried

jointly. All three of them were convicted of murder in the second degree,

and from that conviction jointly prosecute this appeal, assigning several

errors.

The first assignment of error is that the court erred in admitting the

testimony of the witness W. R. DE BARDELEBEN, as per bill of exceptions No.

1, which bill of exception recites as follows: "W. R. DE BARDELEBEN, a

witness for the state, was asked the question by the prosecuting attorney,

'What was the reason you went down to the trial of Addie LYTTON, the scene

of the difficulty, with a gun?' To which the witness replied: 'We went there

to see that no harm came to Addie LYTTON, and because, several days before

the difficulty, Alex. NOLAN, now deceased, had told me that he (Alex. NOLAN)

had heard Ike WILSON tell Robert THOMPSON that he was going to summon a lot

of men to the court, and kill off white men, and that he was going to arrest

Addie LYTTON this time, and carry him to BASTROP.' This witness further

stated that Addie LYTTON told him (the witness) that he (LYTTON) had heard

that Ike WILSON had threatened to kill him, and that he was afraid that

WILSON would mistreat him at the trial; and that he (DE BARDELEBEN) had

heard that Ike WILSON had arrested an old white man down on the river, and

tied him, refused him bail, and walked him to BASTROP. To which question and

answer defendants then and there objected for the reasons: (1) Same was

hearsay; (2) irrelevant; (3) the declarations of Ike WILSON or Robert

THOMPSON were not admissible against these defendants, or either of them,

because the declarations were not made in pursuance of a common design, and

no conspiracy had been proved between these defendants, or either of them,

and Ike WILSON and Robert THOMPSON, or either of them. These objections were

then and there overruled by the court, whereupon defendants, by counsel,

excepted, and now here present their bill of exceptions, and pray that same

be signed, sealed, and made a part of the record." In approving said bill of

exception, the trial judge adds thereto an explanation that said testimony

was offered and admitted for the sole purpose of showing the motive of said

witness in going armed to the scene of the difficulty. It is sometimes

relevant and material to show the motive actuating the conduct of a witness;

and, in the case now under consideration, there can be no question but that

it was material for the prosecution to show, if it could, that the witness,

and other white men who went armed to the scene of the tragedy, went for a

legitimate, innocent purpose, and not for the illegal purpose of interfering

with the court or its proceedings, or with the execution of the law. There

was much conflict in the testimony as to which side, the whites or the

blacks, began the difficulty which resulted so fatally. On the part of the

prosecution, it was and is contended that the blacks brought on the fight in

pursuance of a previously formed conspiracy. On the part of the defendants,

it was and is contended that the whites brought on the difficulty in

pursuance of a previously formed conspiracy. There is evidence tending to

sustain both these theories. In this state of case, it was relevant and

material for the prosecution to show that the whites, in going armed to the

place of the difficulty, were influenced by innocent motives. Proof of

innocent motives on their part would be a circumstance tending to support

the theory that they did not bring on the difficulty, but were the assaulted

party. We are of the opinion, therefore, that the question propounded to the

witness DE BARDELEBEN was legitimate and proper. A portion of said witness'

answer to said question, to-wit: "We went there to see that no harm came to

Addie LYTON," was admissible. But the remainder of his answer to said

question was purely hearsay, and was not admissible for any purpose. When

viewed in connection with the facts of the case, this illegal testimony must

have operated prejudicially to the defendants; and its admission was

therefore material error. Proof of motive, like proof of any other fact,

must be made by legal testimony.

The second and third assignments of error call in question the correctness

of the rulings admitting certain testimony of the witnesses Gus RANDEL and

Joe JACKSON as to statements made by Robert THOMPSON and Runnels WILLIAMS, co- defendants in this prosecution. These statements were not made in the presence of the defendants on trial, and were hearsay as to them, and

inadmissible against them, unless a conspiracy to commit murder existed

between said THOMPSON, WILLIAMS, and these defendants, and unless said

statements were made pending such conspiracy, and in furtherance of the

common design. As we view the evidence before us, the testimony of said

witnesses RANDEL and JACKSON as to the statements made by THOMPSON and

WILLIAMS should not have been admitted, and its admission was material

error.

There are several assignments of error relating to supposed defects in the

charge of the court. No exceptions were saved to the charge; and, upon a

careful examination of the same in the light of the objections urged against

it, we think it is an able, clear, and correct exposition of the law

applicable to the facts of the case, and free from any material error

except in one particular, which is, that it does not instruct the jury as to

the rules governing accomplice testimony. Such instruction was demanded, we

think, by the testimony of the state's witness West CRAFT. Said witness, by

his own testimony, showed himself to be an accomplice in the killing of the

white men; and his testimony was prejudicial to the defendants, and

especially so to defendant WICKS. Defendants requested a proper instruction

as to accomplice testimony, which the court refused to give; and in this, we

think, material error was committed.

We deem it unnecessary to discuss other assignments of error, as some of the

matters complained of may not occur on another trial, and we find no

material errors except those we have mentioned; and because of which

material errors the judgment is reversed, and the cause is remanded.

=================

Tex.Ct.App. 1883.

GEORGE HACKETT v. THE STATE.

13 Tex.App. 406, 1883 WL 8812 (Tex.Ct.App.)

APPEAL from the District Court of Washington. Tried below before the Hon. I.

B. MCFARLAND.

*1 The indictment charged the appellant with the murder of Major WILLIAMS.

His trial resulted in his conviction of murder in the first degree, and he

was awarded the death penalty.

John MCDADE, a colored man, was the first witness presented by the State. He

identified the defendant, testified that he knew the deceased, Major

WILLIAMS, in his lifetime, and was present when the latter was killed by the

former in Washington county, Texas, on the seventeenth of September, 1881.

The parties were present at an entertainment at Jack WILSON's. The deceased

was occupying a seat in the house, when Peter PETTY entered and ordered him

to surrender his seat, which the deceased refused to do, whereupon PETTY

spit in his face. The deceased got up, and PETTY drew a pistol, but Andy

TOMS took the deceased out of the house.

After the deceased was taken from the house, the witness saw the defendant

inside with a knife in his hand. He, the defendant, followed the deceased

out of the house, and while the deceased and the witness were facing each

other in the yard, the defendant came up, and asked the deceased if he

cursed his, the defendant's, wife. To this inquiry the witness replied to

the defendant that the deceased had not cursed his wife, and the deceased

said that if he had cursed the defendant's wife, he, the deceased, "was man

enough to stick to it;" thereupon, the defendant struck the deceased in the

breast with a knife, and the deceased fell and died in a few minutes. The

knife was about five inches long, the blade being two and a half inches in

length.

After the stabbing, the defendant walked around the yard and said that he

was ""the best d--d man there." At the time he was stabbed, the deceased had

his hands down by his side; he had no knife in his hands, and made no

demonstration or motion to strike the defendant. The deceased was about

eighteen years old and in good health when he was killed. Ann HACKETT, the

wife of the defendant, was walking around the yard with a pistol when the

deceased was killed. The witness saw the wound on the body of the deceased

at the inquest held on the day after the stabbing. The knife had penetrated

the left breast near the nipple.

On his cross-examination the witness repeated substantially the account of

the tragedy detailed in his examination in chief. He denied that he struck

Pete PETTY on the head that night, and said that he saw no other person

strike PETTY.

The house at which the party was given, and where the tragedy was enacted,

had two rooms, one being a shed room with a partition. The large room was

about ten feet by twelve in size. The house had three doors, one of the

doors being in the west end of the large room, and another in the partition.

When PETTY told the deceased to get up, the latter was seated on a bench on

the north side of the large room. Mollie RANDLE and another girl were seated

near him. The deceased fell back towards the door when the defendant struck

him with the knife. He had one foot on the door step just before he fell.

The witness was not drunk that night, but had taken two or three drinks.

Byrd KUYKENDALL had liquor in the little room, and would give it away to any

one who would buy candy from him. The witness denied that on the day before

this trial he told Major BREEDLOVE, of counsel for the defense, that Bettie

BOULDING was standing by him when the deceased was killed, but did tell

BREEDLOVE that Bettie BOULDING said that she knew nothing about the killing.

Willis BOULDING was about the premises at the time of the killing, or at

least the witness supposed so, as immediately afterwards he came up to the

body. Eli RANDON, the witness thought, was standing near the southwest

corner of the house when the cutting was done. Byrd KUYKENDALL was standing

very near the witness when the cutting occurred. Rachael MCDADE, the wife of

the witness, was within ten feet of him. Henry and Jerry MAYS stood within

eight feet of the place when the killing occurred. The witness did not see

the deceased have a knife at any time that night. He most positively had

none in his hand when he was killed. The defendant took up for Peter PETTY

in the difficulty in the house which arose over PETTY spitting in the face

of the deceased. There was a light in the house and two torchlights in the

yard at the time of the killing, one of them being held by Rachel MCDADE,

the wife of the witness.

*2 Still testifying on his cross-examination, the witness said that he saw

the open blade of the knife in the defendant's hand before he struck the

deceased. Witness did not attempt to prevent the defendant from cutting the

deceased, because he was afraid of being cut himself. The defendant had his

knife in his hand, down by his side, just before the cutting. The witness

and his wife left the place and went home as soon as the deceased fell, did

not stay until he died, which, he was informed, took place within five

minutes. He was present at the inquest next morning. The witness was not

drunk, and was positive in his declaration that his wife Rachel had a

lighted lamp in her hand at the time of the killing--as positive of that as

of any other fact, and declared that if he was not correct in that

statement, he was correct in nothing he had stated. He knew that the

deceased and the defendant had been good friends, and did not know that they

had ever had a previous disagreement.

Eli RANDON, colored, was next introduced by the State. He testified that he

was present and saw the stabbing. Just before it occurred, Pete PETTY was

running around the yard with a pistol in his hand, and the defendant was

standing talking to the deceased in the yard with an open knife in his hand,

holding it behind him with the blade pointing out. The witness took a light

from some one in the door and looked to see whether it was a knife or a

pistol. The deceased was doing nothing whatever when the defendant struck

him in the breast with the knife. He had his hands down beside his body.

After stabbing the deceased, the defendant walked off waving his knife and

saying something. After he was cut, the deceased walked about his length and

fell by the door of the house, where he expired in about three minutes. The

witness remained with the body all night. The deceased was doing nothing at

the time he was stabbed. He had no knife in his hand, nor did the witness

find one about his person afterwards. The wife of the defendant was on the

premises, declaring that she would blow a hole through any one who

interfered with the defendant. Prior to the killing the defendant was

walking around, mad at and cursing the deceased, and was cursing him when he

inflicted the wound.

On his cross-examination, the witness stated that he was in the house when

the difficulty took place between the deceased and Pete PETTY. The deceased

and the defendant had a slight misunderstanding or quarrel in the house,

which did not amount to much. At the time the deceased "went for" PETTY, the

defendant took hold of him, the deceased. Andy TOMS and the deceased, the

witness thought, went out of the house first, the defendant following. The

witness went out after them, to quiet the row if he could. PETTY was walking

about the yard cursing, and was standing, as near as the witness could tell,

about six feet from the northwest corner of the house, when the killing took

place. Bettie BOULDING was at the house that night. The witness saw Rachel

MCDADE there, but saw nothing in her hands.

*3 Andy TOMS, for the State, gave substantially the same account of the

killing as that given by John MCDADE. He added that when the deceased and

PETTY got into the difficulty in the house, he, witness, took the deceased

out of the house, but the deceased returned, and the witness did not know

whether the deceased or the defendant came out of the house first the second

time. The deceased quarreled with no one when he went back into the house,

so far as the witness knew. The deceased and the defendant had hold of each

other in the house, but that row did not amount to much.

On his cross-examination, the witness stated that he did not know that the

defendant took hold of the deceased to prevent Pete PETTY from assaulting

him. The defendant had hold of the deceased's hand when the witness started

out of the room with the latter. But few minutes elapsed between the dispute

in the house and the cutting. After the cutting the defendant went around

the corner of the house, waving his knife and saying, "What a G--d d--d good

man I is!"

Rachel MCDADE testified, for the State, that she was standing near her

husband, John MCDADE, when the cutting took place. The defendant approached

the deceased and said, "Take it back!" The deceased replied, "By G--d, you

can't make me take it back!" whereupon the defendant stabbed him. After

cutting the deceased the defendant ran to his horse, calling to his wife to

come on. The witness had no lamp in her hand.

Cross-examined, the witness stated that she stood in front of the deceased

when he was stabbed. She did not see the difficulty in the house. Just about

or near the time of the cutting some one brought a lamp out near the parties

and placed it on the ground. The witness picked it up and put it in the

door. "If any body says I had a lamp in my hand he tells a yarn!?? The

witness went off home when the deceased fell.

Other testimony introduced by the State harmonized in every particular with

that recited--all concurring in the declaration that the deceased exhibited

no knife, and that none was found about him after his death.

For the defense, Andrew HARRIS testified that he saw nothing of the killing.

He detailed the difficulty in the house between PETTY and the deceased, and

declared that, as soon as that started, the deceased and the defendant went

to fighting. Thereupon the witness left, going home, and witnessed none of

the after occurrences.

Wash. PLEASANTS, for the defense, stated that upon the commencement of the

difficulty between the deceased and PETTY in the house, prior to the

cutting, the deceased and the defendant became involved in a fight without

exchanging a word. They passed one blow and clinched. He next saw the

defendant and a number of others going out of the door.

W. WARD, for the defense, described the row between the deceased and PETTY

in the house. He did not see the defendant and the deceased in a row in the

house. He stated that the defendant went out of the house in advance of the

deceased.

*4 The opinion sets out the statement of Bettie BOULDING as it appears in

the defendant's application for a continuance, and which was read in

evidence.

The defendant's motion for a new trial raised the questions involved in the

rulings of this court.

The rule laid down in SKARO's case is "that an admission that

a witness, on account of whose absence a continuance is asked, would swear,

if present, as stated in the affidavit for continuance, will not defeat (the

application)." Such rule applies only where the defendant is legally

entitled to a continuance; and hence the defendant in this case was not

injured by a charge which instructed the jury, in substance that the written

statement contained in the motion for continuance should be received, and

given the same weight, and no more, as if the witness had been on the stand.

An agreement to permit defendant to read the testimony of an absent witness,

in order to avoid a postponement, held not to preclude the state from

introducing the absent witness, if possible, before the conclusion of the

evidence.

Instructions that, from the evidence, the jury were to "deduce the guilt or

innocence of defendant," held erroneous, because repugnant to the doctrine

of the presumption of innocence and reasonable doubt.

The court, in a trial for murder, instructed the jury that it was for them

to determine the facts from the evidence before them, "and, applying the

facts thus ascertained to the law as above given you, it will be your duty

to deduce the guilt or innocence of the defendant." Held, erroneous,

inasmuch as the jury is required to believe the defendant innocent in order

to acquit, and because repugnant to the rule which requires a verdict of not

guilty, unless the state establishes the guilt of the defendant beyond a

reasonable doubt.

In a criminal prosecution it is incumbent on the trial court to charge the

jury upon every phase of the case made by the evidence.

Evidence in a murder trial held to require a charge on the subject of

"cooling time."

MCADOO & VINSON, and BREEDLOVE & EWING, for appellant.

J. H. BURTS, Assistant Attorney General, and F. D. JADON, for the State.

HURT J.

George HACKETT was tried and convicted for murder of the first degree, and

his punishment assessed at death.

We will consider the assignments of error in the order presented in the

brief of the appellant, except those relating to the charge of the court,

which will be considered last. The first error assigned relates to the

overruling of the defendant's application for a continuance. In regard to

this matter, there was no error of which the defendant can complain, the

witness Bettie BOULDING being present in court before the evidence was

concluded.

The seventh assignment of error is, that "the court erred in overruling the

defendant's motion for new trial; 1, on acount of newly discovered evidence;

2, in that the court allowed the State to introduce Bettie BOULDING on the

stand, in the face of the written agreement to read the statement of what

her testimony would be."

With regard to the last ground in this assignment, we are informed by the

record that the defendant had not been served with a copy of the venire

facias, and that the cause was about to be postponed, when a written

agreement was entered into by the defendant and the county attorney to the

effect that the defendant would announce with the right to read to the jury,

as evidence, the testimony of Bettie BOULDING as set forth in the

defendant's motion for continuance.

There was nothing in this agreement which inhibited the county attorney from

introducing the witness, if her presence could be had. Certainly the

defendant could not be heard to complain of the introduction of a witness

who, according to his oath, would swear to such a perfect defense to the

charge pending against him. If this motion for continuance was made in good

faith, the introduction of this witness would have been heard with perfect

satisfaction. We are of the opinion that, notwithstanding the agreement, the

county attorney had the right to introduce and examine the witness Bettie

BOULDING. This, however, was not allowed when the defendant objected.

Counsel for the defendant assigns as error the charge of the court which

relates to the evidence of this witness. The charge was, in substance, that

the written statement contained in the motion for continuance should be

received and given the same weight, and no more, as if she had been on the

witness stand. Counsel insists that the rule stated in SKARO v. The State is in point. The rule there stated is "that an admission that

a witness, on account of whose absence a continuance is asked, would swear,

if present, as stated in the affidavit for continuance, will not defeat the

application." If the defendant in the case in hand had been legally entitled

to a continuance, the above rule would apply; but, as he was not injured in

this matter (the witness Bettie BOULDING appearing in time to be used as a

witness), the rule has no application whatever.

*5 We will now consider the charge of the court, in which we think there is

error. In the twelfth subdivision of the charge the court instructed the

jury as follows:

"It is for the jury to determine the facts from the evidence before them,

and applying the facts thus ascertained to the law as above given you, it

will be your duty to deduce the guilt or innocence of the defendant," etc.

Deduce the innocence of the defendant! Mr. WEBSTER says that "deduce" means

"to derive by logical process; to obtain or arrive at as the result of

reasoning; to infer." Reasoning is nothing but the faculty of deducing

unknown truths from principles already known.

To justify an acquittal, must the innocence of the defendant be deduced,

reasoned out, or inferred, by applying the facts ascertained to the law as

given by the court?

It is well settled in criminal law that the jury need not believe the

defendant innocent in order to acquit. The State asserts an affirmative

proposition, which is the guilt of the defendant, and the jury must acquit

by finding not guilty unless the State establishes this proposition beyond a

reasonable doubt. If the jury are required to deduce the guilt or innocence

of the defendant from the law and evidence (under a rule of criminal law),

they would be placed in a very perplexing and inconsistent condition. The

rule of criminal law referred to requires the jury to believe from the law

and evidence that the party is guilty beyond a reasonable doubt, before they

will be warranted in law to convict. The jury may believe him guilty; this

belief will not suffice unless from the law and evidence they are satisfied

of his guilt beyond a reasonable doubt; and if not so satisfied they, under

the law, must acquit by finding him not guilty. They are not required to

believe him innocent. The verdict of not guilty is simply, in effect, to

deny that the State has established the affirmative proposition, which is

the guilt of the defendant, beyond a reasonable doubt; and is not a

declaration of innocence. The jurors may believe him guilty, but can not,

because of doubt, convict. Under this charge they can not acquit because

they believe him guilty. They have deduced his guilt, but not beyond a

reasonable doubt, hence can not convict. They have not deduced his

innocence; hence under this charge they can not acquit.

We are of the opinion that this charge is erroneous, and is in direct

conflict with the rule that the person is presumed innocent until his guilt

is established beyond a reasonable doubt.

We are of the opinion that the law was not applied to the theory of the case

presented by the evidence of the witness Bettie BOULDING. The facts expected

to be proved by this witness, as found in the motion for continuance and by

agreement read to the jury, are as follows: "That she was present at the

time of the difficulty. That Major WILLIAMS struck the defendant in the

house without any provocation whatever, and also drew an open knife on the

defendant and tried to cut him with the knife; and that the defendant, to

keep WILLIAMS from cutting him, ran out of the house; and that WILLIAMS

immediately followed the defendant out of the house into the yard with an

open knife in his hand, and was trying to cut the defendant with the knife;

and that two or three persons were assisting WILLIAMS in his efforts to get

to defendant with the knife; that WILLIAMS was mad and cursing the

defendant; that, while WILLIAMS was pursuing and cursing the defendant, and

so being assisted by other persons in the yard, the defendant struck with

his knife in his own necessary self-defense. That the defendant was all the

time, from the beginning to the ending of the difficulty, at the time and

place acting in his necessary self- defense, and was all the time trying to

prevent a difficulty and to avoid any collision with WILLIAMS and all other

persons."

*6 The court charged upon murder of the first and second degrees and

manslaughter, and submitted this, and only this, charge upon the subject of

self-defense: "Homicide is permitted by law when inflicted for the purpose

of preventing the offenses of murder, rape, robbery, maiming, disfiguration,

castration, arson, burglary and theft at night; but in such case it must

reasonably appear by the acts, or words coupled with threats of the person

killed, that it was the purpose and intent of such person to commit one of

the offenses named."

Considered in the light of the facts in this case, this is a most remarkable

charge. What had robbery, maiming, theft at night, or castration to do with

this case? The deceased was killed at a social gathering. There was no

attempt to rob, rape, maim or castrate any person.

There is another serious objection to this charge. It requires the words to

be coupled with threats in order for it to reasonably appear that it was the

purpose and intent of the party killed to commit one of the offenses. The

purpose may appear with threats if the words are coupled with the acts of

the party killed. But suppose that the above charge was perfectly

unobjectionable in every particular, it would simply announce an abstract

proposition of law. There is no attempt to apply the law to that theory of

the case which is presented by the evidence of Bettie BOULDING. The rule

upon this subject is, that instructions should not be presented in the form

of abstract propositions, but should be constructed upon the evidence in the

particular case at bar. A state of facts should be supposed which accords

with the evidence; then deduce the legal conclusions applicable to such

state of facts. This rule applies not only to the case as made by the

evidence, but to every phase which has any support in any part of the

evidence.

We are of the opinion that the court should have applied the law directly

and affirmatively to the theory of the case made by the evidence of the

witness Bettie BOULDING. We also suggest the propriety of instructing the

jury upon the subject of cooling time, in view of the evidence of some of

the witnesses for the defendant.

The other assignments will not be discussed, as the case will probably be

divested of these questions on another trial.

For the errors in the charge the judgment is reversed and the cause

remanded.

Reversed and remanded.

==============

Tex.Crim.App. 1917.

LE MASTER v. STATE.

196 S.W. 829, 81 Tex.Crim. 577

Appeal from District Court, Potter County; H. L. UMPHRES, Judge.

Mike C. LE MASTER was convicted of unlawfully becoming indebted to a state

bank of which he was president, and appeals. Reversed and remanded, and

rehearing denied.

In the prosecution of a state bank president for unlawfully becoming

indebted to the bank by being a member of a partnership which borrowed money

from the bank in the name of two others, it was error to admit evidence of

transactions after the alleged offense tending to show a partnership at that

time.

An instruction to convict if defendant became unlawfully indebted to the

bank of which he was president, without stating that he must have become

indebted through a secret partnership alleged in the indictment, held

erroneous.

Evidence in the prosecution of bank president for unlawfully borrowing money

through secret connection with a partnership to which the loan was made,

held insufficient to show that defendant was a partner, and through the

partnership became indebted to the bank.

Indictment held to sufficiently charge the defendant bank president in a

general way with becoming indebted to the bank, but not to authorize

admission of evidence of transactions showing his indirect liability through

membership in a firm to which the loan was made.

In prosecution of bank president for unlawfully borrowing money from bank,

held, that the court should have limited evidence of subsequent transaction

to its effect as tending to show existence of partnership of which president

was a member, declared on in the indictment.

Permitting the state to withdraw evidence held error, regardless of whether

the evidence was introduced by the state or elicited by accused on cross-

examination of the state's witness.

In prosecution of bank president for unlawfully borrowing money through a

loan made to a firm of which he was a secret member, held error to instruct

on the law of partnership without applying such law to the facts.

Error in an instruction in a case wherein accused was convicted required a

reversal, where it was speculative as to what the verdict would have been

under a correct instruction.

Failure to instruct that defendant should be acquitted of unlawfully

borrowing money from a state bank of which he was president, through his

secret membership in a firm, unless the partnership existed as alleged, held

fatal error where the evidence as to the existence of the partnership was

conflicting.

A. A. LUMPKIN, of Amarillo, and COOPER & MERRILL, of Houston, for

appellant.

MARTIN, KINDER, RUSSELL & ZIMMERMANN, of Plainview, and C. C. MCDONALD, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of becoming indebted to a state bank, of which he

was president, in the sum of $8,000.

The first count in the indictment sets out the particulars of the

transaction relied upon by the state, but this count was discarded by the

court in submitting the case to the jury, and he submitted only the second

count, omitting the third count. The count submitted charged that appellant

was duly elected, qualified, and acting president, and a member of the board

of directors of the First State Bank of Amarillo, a banking corporation

theretofore incorporated and engaged in the business as a state bank in the

city of Amarillo under the authority of the laws of the state, and as said

officer he became indebted to the bank in the sum of $8,000, without the

consent of the majority of the board of directors, and without having the

matter duly registered or inscribed upon the minutes of the bank.

The indictment is attacked in that it fails to apprise the defendant of the

nature and circumstances of the case and wherein he had violated the law. He

invokes the statutory rule, which is settled, that everything necessary to

be proved must be alleged in the indictment. The writer is of opinion this

indictment is too general and does not specifically notify the defendant of

the transaction for which he is to be tried, and that the only allegation in

the submitted count is of a very general nature and to the effect that he

became indebted to the bank in the sum of $8,000 without proper authority

from the board of directors. The writer is of opinion, without going into a

discussion at any length of the matter, that the count submitted to the jury

is not, within the contemplation of the law, sufficient. The general

allegation that appellant had become indebted to the bank in the sum of

$8,000 is too general. There is a want of particularity about it, and

it does not inform the defendant of what transaction he is charged. There is

nothing to describe the manner of indebtedness, or how it came about, so as

to notify defendant of the matters and transactions that he was to meet by

the proof. The first count set out particularly these different matters and

gave appellant notice of how and when and the circumstances attending the

indebtedness, and how it came about, but the court did not submit this to

the jury. This much is said in a general way.

It will be noticed upon investigation of the case that all the facts to be

relied upon by the state were known at the time the indictment was

presented, and as to how the indebtedness was created, if there was any. The

facts in this connection, as relied upon by the state, were made through the

testimony of an accomplice, MCSPADDEN. His testimony, substantially, is that

MORRIS came and notified him of the fact that he could buy an optional

cattle contract, the cattle being in Arizona; that he thought this option

could be bought at $5,000, and if he had the money the trade could be made

and profit made out of it by selling this contract for an enhanced value to

other parties. His object in calling MCSPADDEN was that MCSPADDEN might

enable him in some way to get the money. They discussed it, and MCSPADDEN,

not having the money, suggested they see appellant, who was president of the

State Amarillo Bank, and get him to furnish the money. Appellant was called,

and MCSPADDEN's testimony is to the effect that after discussing it

appellant agreed to furnish the money; MORRIS and MCSPADDEN signing the note

at the bank for $5,000. There was something said to the effect that it was

not probable that the option could be bought at $5,000; that it might take

more money. MCSPADDEN further testified that appellant, MORRIS, and himself

agreed that MORRIS and MCSPADDEN were to sign a note to the bank and have

the money transferred to their credit, and that appellant was to be a

partner in the profits and maybe losses, but his name not to be known in the

matter, and in this way that appellant became a partner in the purchase of

the cattle option contract. He also testified that there was no other cattle

contract, in contemplation or discussed between them at the time. His

language was:

"Yes, sir; it was agreed that Mike C. LE MASTER was to advance the money on

the condition that I went along and used what influence I possessed to keep

MORRIS from getting drunk, and Gus agreed not to get drunk any more, and

straighten up. There was nothing said at that time about any other

transaction. We were to do the best we could. We did not know exactly how

much money it would take, but we were to let Mr. LE MASTER know. We wanted

to get an option on the cattle for spring delivery and then sell the option.

The agreement was that Mr. LE MASTER was to advance the money to be paid as

a forfeit on the cattle and MORRIS and myself were to go out there and get a

contract and purchase them and sell the contract."

This occurred on the 26th day of December, and on the 27th a note was

executed by MORRIS and MCSPADDEN to the bank, appellant's name not appearing

in any of these matters. Upon signing the note MORRIS and MCSPADDEN left

Amarillo and went to El Paso. They there got in touch with the owners of the

cattle and bought the option. The owners of the cattle, however, required

$8,000 instead of $5,000. By wire appellant was notified of that fact. He

took the MORRIS and MCSPADDEN note and wrote above the 5,000 3,000. The

intention it seems was to make the note for $8,000 instead of $5,000. The

deal was made, and in three or four days the option was transferred at a

profit of considerable amount and closed out, and MORRIS and MCSPADDEN came

back to Amarillo and deposited the money in the state bank at Amarillo, and

on the 6th of January took up and paid off the note. Appellant was not in

Amarillo at the time, but was in Ft. Worth. He knew nothing about the

payment of the note until later information was conveyed to him. MORRIS

testified in many respects as did MCSPADDEN, but he denied that LE MASTER

had or was to have any interest in the option contract, and was in no way

connected with the profits or losses. In fact, he was in no sense, or in no

way interested in the contract, nor was he to receive any profits,

dividends, or pay any losses. Appellant testified in his own behalf as did

MORRIS. After returning to Amarillo and taking up the note MCSPADDEN and

MORRIS, without the knowledge of appellant, went to New Mexico with a view

of purchasing other cattle. Appellant had nothing to do with this and knew

nothing of this matter.

[1][2] There were other subsequent cattle deals by MCSPADDEN and MORRIS

which the state undertook to connect appellant with by MCSPADDEN's

testimony. Both MORRIS and appellant denied that there was any partnership.

There was evidence introduced by the state to show these subsequent

transactions over the protest and objection of appellant. We are of opinion

these objections were well taken. The court also failed to limit this

testimony. Having admitted the testimony, the court should have limited it.

It was not in reference to the original case and could not be, and if it was

introduced for any purpose it was to show that by reason of the subsequent

transactions between the parties that they were partners in the original

transaction declared upon in the indictment. As before stated, we are of

opinion these matters should not have gone before the jury, but having been

permitted to be introduced, the court should have limited them to their

proper office in his charge. The state's testimony as well as that for the

defendant all agree that if appellant had any connection with any of these

transactions it was the one based on the note, and the sum finally drawn

from the bank of $8,000, which was paid back within ten days by MORRIS and

MCSPADDEN. MCSPADDEN says there was no other transaction in contemplation or

under discussion. MORRIS uses the same language and testifies to the same

thing, so does appellant. So it would be evident that subsequent

transactions if entered into independent or disconnected with the

first, not growing out of or related to it in any way, could not come into

the case as testimony on the question of partnership in the first

transaction.

There was nothing said, as MCSPADDEN, MORRIS, and LE MASTER all testify, as

to any other trade either then or in contemplation for future dealings. The

fact that later they may have made other trades, or that appellant may have

become interested in later transactions, could not afford testimony proving

a partnership in a single transaction which begun and ended with itself.

These latter matters had no relation to or bearing upon the case; they did

not serve to identify or develop the case; were not res gestae, nor could

possibly reach the question of system. The matter is here dealt with

generally without going into details as shown by defendant's bills of

exception with reference to these matters. There are several of these

matters, all of which upon another trial should be excluded.

[3] The state introduced Mr. MOOD as a witness, and was proving by him some

matters that occurred on the trial of a civil case in which he took down the

testimony as stenographer. It seems they were seeking to prove the

testimony of apellant while testifying in his own behalf on the trial of the

civil case. There are several pages of these questions and answers set out

in the bill so as to make it clear and plain. It developed in his testimony

that on the trial of the civil case appellant won; that the jury found a

verdict in his favor. When the testimony of Mr. MOOD was complete, or they

had become satisfied about it, the state moved to exclude all his testimony

from the consideration of the jury. The appellant excepted. The state's

counsel put their motion to withdraw the testimony on the ground that they

did not purpose to introduce the record in the civil case. These matters are

generally stated, and not the details. We are of opinion that the objections

of the defendant were well taken. The testimony should have remained before

the jury. Among the early cases on this question in Texas is SPEIGHT v.

State. The first section of the syllabus of that case

sufficiently states the question:

"If the accused elicits testimony adverse to himself, he must take the

consequences; and he is not entitled to have it withdrawn from the jury

because part of the same proof, when offered by the prosecution, had

previously, on his objection, been excluded by the court."

In that case the defendant moved to exclude testimony introduced by himself

that he thought adverse to him. The state would occupy no better position

under the same circumstances than would appellant. The testimony, as said in

the SPEIGHT Case, if illegal at all, was his own testimony, and we opine he

ought to be held to take the consequences, and could not exclude it simply

because it was found to be unfavorable to his case. In MOORE v. State the question came again. The headnote of that opinion is as

follows:

"If the defendant elicits testimony adverse to himself, he must abide the

consequences; and that a state's witness, upon cross-examination by the

defendant, testified to a confession made after arrest, is not cause for

a new trial, as having improperly gone to the jury."

The doctrine was approved in ALLEN v. State and ROBINS v.

State. In the case of MCDADE v. State the question again came. At page 689 of that

report the court said:

"In the seventh assignment of error it is complained that 'the court failed

to instruct the jury that the declaration of ALLCHIN to FELKER that threats

had been made against him by defendant was not any evidence that such

threats were made, and that they should not consider such statement as a

part of the evidence for that purpose, when it was expressly requested so to

charge by defendant.' This evidence was drawn out by defendant upon the

direct examination of his witness FELKER, and neither the prosecution nor

the court was responsible for it. If the defendant elicits testimony adverse

to himself he must abide the consequences"--citing SPEIGHT v. State and MOORE v. State.

The state having introduced Mr. MOOD as a witness, and his testimony being

introduced without objection from the defendant, the state could not,

because the testimony was somewhat damaging to its case, withdraw it from

the jury. The state introduced it and could not withdraw it over objection

of appellant. The above cited cases seem to settle that question.

There are exceptions to the second subdivision of the charge on various

grounds. This subdivision limits the jury to the second count, and charged

if the jury should find appellant was an officer duly elected, qualified,

and acting president and a member of the board of directors of the state

bank, and that the bank was incorporated, etc., and he became indebted to

that bank in the sum of $8,000 without proper authority from the board of

directors, they should convict him. It will be noticed in this connection

that this charge submits the fact that he was president and one of the board

of directors. The indictment, while it mentioned the fact that he was an

officer and member of the board of directors, it did not attempt to charge

him with being guilty of violating the state law as a director, but only as

president or acting president. The president cannot borrow any amount of

money from the bank without proper authority. The indictment did not

undertake to charge any matter that would make him criminally liable as a

director. He was charged as the president of the bank, and not as a member

of the board of directors. If he was sought to be convicted as a director,

then the charge should have specifically brought that matter to the

attention of the jury.

[4] It will be noticed that this charge does not undertake anywhere to

inform the jury as to the relation of appellant to the amount of money or

the circumstances by which he could have possibly been indebted to the bank.

All the testimony and the indictment excludes the idea that his name was on

the bank books. The proof all shows that it was not, and that there was no

contract and no evidence in the bank books, records, or papers that his name

was in any way connected with any indebtedness to the bank. The only

way by which it was sought to hold him liable was through the testimony of

MCSPADDEN that he was a secret partner in the profits and losses that might

arise in the option contract which MORRIS and MCSPADDEN accomplished and for

which the bank is supposed to have furnished the $8,000. In order,

therefore, to hold appellant guilty, the charge should have conformed to the

facts, and in order to hold him the state would have to show that he was

guilty under the circumstances detailed by the state's witness as partner.

In other words, in order to convict appellant the jury should have been

instructed that they would have to find that appellant became indebted to

the bank by means of this partnership matter about which MCSPADDEN

testified. This was the state's case, and it was all the state had or put

into the trial. In this same connection it may be well enough to notice that

section 3 of the charge is a general statement of the law of partnership as

understood by the court in giving his charge, and it reads as follows:

"A partnership is formed by two or more persons placing their money,

effects, labor and skill or some one or all of them in business with the

purpose and intention of dividing the profit and bearing the loss in certain

proportions and may be made and entered into either by express agreement,

oral or written, of those forming the partnership, or it can result from the

conduct of the parties in relation to the business. Those forming the

partnership are partners. When a partnership is formed each individual

partner in relation to partnership business in law binds himself and each of

the other members of the partnership jointly and severally for any

partnership obligations made in furtherance of the partnership enterprise

and within the scope of the partnership business."

[5][6] This is all the charge with reference to partnership. It will be seen

that it has no reference to and is not connected back with the other charge;

nor does the other charge refer to partnership, nor is the jury charged that

if appellant was a partner within the terms of the law with MCSPADDEN and

MORRIS, and under that partnership there was or could be an indebtedness

created for which appellant would be responsible, they might convict. This

definition of partnership is thrown into it in a general way without any

application of the rule of partnership to the facts in the ease, or facts of

the case to the partnership. In the second clause of the charge which

submits the law for conviction the partnership is not mentioned. Under the

facts it was all the state had upon which to predicate a conviction. In the

charge on partnership it does not inform the jury that if appellant

connected himself with this indebtedness by means of this partnership, and

was responsible under the terms of the contract by reason of this

partnership, that he might be liable for the indebtedness, but instructs the

jury to convict for the indebtedness in the second clause, and gives a

general definition without any application of the law to the facts of

partnership. If appellant was guilty at all it was under MCSPADDEN's

testimony to the effect that he agreed to divide the profits and losses and

carry the partners under the contract, and that he did furnish the money

from the bank. The state admits error in the charge on partnership as given,

but asserts the error was favorable to appellant. It was error, and we think

harmful. The error is conceded; the verdict was guilty. What may have been

the verdict under a correct charge is speculative, but it is not speculative

that he was found guilty.

[7] There is another phase to this charge that is fatal. MCSPADDEN swore to

this partnership as set out in the early part of the opinion. MORRIS and

appellant denied it emphatically. There was an issue sharply drawn by this

testimony as to whether this partnership existed or not. The bulk and the

weight of the testimony was that the partnership did not exist. The jury so

found by their verdict in the civil proceeding and exonerated appellant as

partner and found in his favor in the suit against himself and MORRIS by

MCSPADDEN. This was shown by the testimony of MOOD. Now the converse of the

proposition, had the partnership been properly charged, was if the jury

should find there was no partnership existing between these parties at the

time, they should find in his favor and acquit him. Such omission is fatal

error.

[8] It is contended that the evidence is not sufficient to show that

appellant was a partner, and that through the partnership became indebted to

the bank. The writer is of opinion that this proposition is correct.

MCSPADDEN testified, and he alone, that appellant was to be connected with

the profits or losses, and MORRIS testified positively that such was not the

case, and that he and MCSPADDEN alone were responsible, and that he was to

get two-thirds of the profits and MCSPADDEN one-third, and that appellant

had nothing to do with it. MCSPADDEN testified they were to be equal

partners, each getting a third. There were some telegrams passing between

the parties with reference to this $8,000 option contract introduced by the

state, but these did not show that a partnership existed. It was with

reference to the fact that the $5,000 first agreed upon and mentioned in the

note was not sufficient, and appellant agreed to furnish the extra $3,000

from the bank, and later wrote it in the note. The note was payable to the

bank, and appellant was in no way concerned with it, and if he was connected

in any manner with it it was by reason of MCSPADDEN's testimony, which

appellant and MORRIS both denied. As it occurs to the writer, there is no

testimony which supports or corroborates MCSPADDEN in his statement. If,

however, the state should further prosecute, the testimony should be limited

to the transaction about which the witnesses testified and not extend it to

subsequent contracts in no way connected with or related to the one under

investigation.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

[9] On a former day of the term the judgment was reversed and the cause

remanded. The state contends in a motion for rehearing that the court was in

error in holding that the indictment was not valid. It was stated that the

general allegation that appellant had become indebted to the bank in the sum

of $8,000 was not specific enough and entirely too general; that it was

wanting in particularity, and failed to inform the defendant of the

transaction, for which he was to be tried. The writer, upon further

investigation, still adheres to his original views. The majority, however,

do not agree with him. Under the view of the majority the former opinion

will be modified and the indictment held sufficient to charge appellant in a

general way with becoming indebted to the bank in the specified sum. The

indictment contained three counts. The first set out the facts attending the

transactions by which it was sought to connect appellant with violating the

banking law, he being president of the bank. That count, however, was not

submitted to the jury by the court, and passed out of the case. The second

count was submitted in which the general allegation was made that appellant

became indebted to the bank of which he was president. Under these

allegations the state would be required to prove that appellant had become

directly indebted to the bank, and that proof of the matters and facts set

up by the state in its evidence would not meet the count upon which the

conviction was obtained, which evidence was to the effect that appellant and

MCSPADDEN and MORRIS entered into an agreement by which they were to buy

cattle and the bank furnish the money, predicated upon a note given by

MCSPADDEN and MORRIS, and the money transferred on the books of the bank to

their credit, and that appellant would be a partner in the profits and

losses of the cattle transaction for which the note was given to secure

funds in payment of the cattle. Appellant's name does not appear anywhere

either in the note or on the bank books, and on the face of the transaction

he is not directly shown to be connected with any of those matters. In other

words, it was a secret partnership, if it existed. This was perhaps the most

serious question in the case so far as the evidence was concerned. So

following the views of the majority, the count will be held sufficient to

charge an offense, but not to admit evidence of the transactions showing an

indirect liability as sought by the state; that this would be a variance

between the allegation in the count submitted and the evidence, and

therefore the evidence did not support the finding of the jury under the

count and the charge submitting that count.

In regard to what was said in the original opinion with reference to a bill

of exceptions which contains matters and things set out through the witness

MOOD, the state contends that the opinion was in error in holding that

state's counsel was responsible for withdrawing all the testimony of MOOD

from the jury. The contention is that the state did not withdraw the

statements of MOOD on cross-examination by appellant's counsel to the effect

that appellant had won the civil suit. Strictly and technically speaking

this contention may be correct. The bill in regard to this matter shows that

when MOOD was placed upon the stand and the various questions asked and

answers elicited, he was then passed to appellant's counsel for

cross-examination, and, among other things, it was elicited from him that

appellant had won the civil suit in which MCSPADDEN sued MORRIS and himself

for settlement of alleged partnership matters, which involved the $8,000

matter. State's counsel objected to this cross-examination as to the matters

elicited from MOOD, but the court overruled the objection upon the ground

that the state had drawn out the matter, and this was a legitimate

cross-examination. When this occurred the bill of exceptions recites that:

"Thereupon the state rested, and stated they desired to consult a moment,

and within a few minutes returned to the court, and through their private

prosecutor, Mr. MARTIN, stated to the court, 'We are not going to introduce

any of the record, and we ask that the court strike out the testimony of Mr.

MOOD in regard to it.' (The record referred to being the transcript of what

purported to be the statement of facts in the case of W. A. MCSPADDEN v. R.

A. MORRIS et al., in which the state's counsel had attempted to prove up by

A. M. MOOD for the purpose of offering the same and parts thereof to impeach

the defendant as a witness.) The court then stated, 'What part of the record

do you have reference to?' Mr. MARTIN stated in reply to such question, 'All

of Mr. MOOD's testimony identifying the record, since we are not offering

any of the record, that evidence would serve no purpose. We do not intend to

offer the record, and we would like to have this testimony stricken from the

record, since it does not tend to prove any issue in this case."'

Thereupon defendant's counsel objected to the withdrawal of any of the

testimony by the state for the reason they had offered the same, and when it

was proved harmful to them they desired to withdraw it, and that it was

material and beneficial to the defendant, and that they had no power to

withdraw it when they had offered it themselves, and they considered it

harmful to then be permitted to withdraw it. The court, not specifically

ruling on the objection, turned to the jury and instructed them as follows:

"I will strike out and instruct the jury not to consider the testimony of

Mr. MOOD."

In the former opinion the writer was under the impression that, legally

speaking, state's counsel were responsible for being really the moving

parties in getting the matter before the jury as well as to its final

withdrawal or exclusion after putting it in before the jury; that it was too

late for the state to withdraw it after cross-examination of the witness in

reference to the matter they had drawn out; and that their motion, had it

been sustained, would practically have operated to withdraw all the

testimony of the witness MOOD, whether it was direct or

cross-examination. If the writer was in error about this, then counsel for

the state may not have been altogether responsible for the withdrawal of

MOOD's testimony favorable to the defendant. But the matter was so

intermingled--the direct and cross examination taken--with the remarks of

the court it occurred to the writer that the effect of the state's

motion was to withdraw all the testimony, especially in view of the fact

that this motion was not made until after MOOD developed the fact that

appellant had won the civil suit. This testimony seems to have been

introduced by the state for the purpose of laying some predicate with

reference to the case and the testimony of defendant in the civil suit, but

when MOOD testified to the fact that appellant had been eliminated from that

record by the verdict of the jury, counsel moved to exclude or withdraw the

testimony from the jury. State's counsel insist strenuously that they did

not undertake to withdraw the testimony introduced on cross-examination, and

that they were only undertaking to withdraw that which they introduced.

Without going into any detail about the matter, or any discussion, we place

it as the record does, so that it will be fully understood and its effect

and result from the whole bill of exceptions may not be unjust to either

side. The result, however, would be the same. This testimony was withdrawn

from the jury, and under the circumstances it should not have been

withdrawn. It is deemed unnecessary to discuss the other matters.

Finding no reason why the motion for rehearing should be granted, it is

ordered that said motion be overruled.

================

Tex.Crim.App. 1917.

LE MASTER v. STATE.

196 S.W. 829, 81 Tex.Crim. 577

Appeal from District Court, Potter County; H. L. UMPHRES, Judge.

Mike C. LE MASTER was convicted of unlawfully becoming indebted to a state

bank of which he was president, and appeals. Reversed and remanded, and

rehearing denied.

In the prosecution of a state bank president for unlawfully becoming

indebted to the bank by being a member of a partnership which borrowed money

from the bank in the name of two others, it was error to admit evidence of

transactions after the alleged offense tending to show a partnership at that

time.

An instruction to convict if defendant became unlawfully indebted to the

bank of which he was president, without stating that he must have become

indebted through a secret partnership alleged in the indictment, held

erroneous.

Evidence in the prosecution of bank president for unlawfully borrowing money

through secret connection with a partnership to which the loan was made,

held insufficient to show that defendant was a partner, and through the

partnership became indebted to the bank.

Indictment held to sufficiently charge the defendant bank president in a

general way with becoming indebted to the bank, but not to authorize

admission of evidence of transactions showing his indirect liability through

membership in a firm to which the loan was made.

In prosecution of bank president for unlawfully borrowing money from bank,

held, that the court should have limited evidence of subsequent transaction

to its effect as tending to show existence of partnership of which president

was a member, declared on in the indictment.

Permitting the state to withdraw evidence held error, regardless of whether

the evidence was introduced by the state or elicited by accused on cross-

examination of the state's witness.

In prosecution of bank president for unlawfully borrowing money through a

loan made to a firm of which he was a secret member, held error to instruct

on the law of partnership without applying such law to the facts.

Error in an instruction in a case wherein accused was convicted required a

reversal, where it was speculative as to what the verdict would have been

under a correct instruction.

Failure to instruct that defendant should be acquitted of unlawfully

borrowing money from a state bank of which he was president, through his

secret membership in a firm, unless the partnership existed as alleged, held

fatal error where the evidence as to the existence of the partnership was

conflicting.

A. A. LUMPKIN, of Amarillo, and COOPER & MERRILL, of Houston, for

appellant.

MARTIN, KINDER, RUSSELL & ZIMMERMANN, of Plainview, and C. C. MCDONALD, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of becoming indebted to a state bank, of which he

was president, in the sum of $8,000.

The first count in the indictment sets out the particulars of the

transaction relied upon by the state, but this count was discarded by the

court in submitting the case to the jury, and he submitted only the second

count, omitting the third count. The count submitted charged that appellant

was duly elected, qualified, and acting president, and a member of the board

of directors of the First State Bank of Amarillo, a banking corporation

theretofore incorporated and engaged in the business as a state bank in the

city of Amarillo under the authority of the laws of the state, and as said

officer he became indebted to the bank in the sum of $8,000, without the

consent of the majority of the board of directors, and without having the

matter duly registered or inscribed upon the minutes of the bank.

The indictment is attacked in that it fails to apprise the defendant of the

nature and circumstances of the case and wherein he had violated the law. He

invokes the statutory rule, which is settled, that everything necessary to

be proved must be alleged in the indictment. The writer is of opinion this

indictment is too general and does not specifically notify the defendant of

the transaction for which he is to be tried, and that the only allegation in

the submitted count is of a very general nature and to the effect that he

became indebted to the bank in the sum of $8,000 without proper authority

from the board of directors. The writer is of opinion, without going into a

discussion at any length of the matter, that the count submitted to the jury

is not, within the contemplation of the law, sufficient. The general

allegation that appellant had become indebted to the bank in the sum of

$8,000 is too general. There is a want of particularity about it, and

it does not inform the defendant of what transaction he is charged. There is

nothing to describe the manner of indebtedness, or how it came about, so as

to notify defendant of the matters and transactions that he was to meet by

the proof. The first count set out particularly these different matters and

gave appellant notice of how and when and the circumstances attending the

indebtedness, and how it came about, but the court did not submit this to

the jury. This much is said in a general way.

It will be noticed upon investigation of the case that all the facts to be

relied upon by the state were known at the time the indictment was

presented, and as to how the indebtedness was created, if there was any. The

facts in this connection, as relied upon by the state, were made through the

testimony of an accomplice, MCSPADDEN. His testimony, substantially, is that

MORRIS came and notified him of the fact that he could buy an optional

cattle contract, the cattle being in Arizona; that he thought this option

could be bought at $5,000, and if he had the money the trade could be made

and profit made out of it by selling this contract for an enhanced value to

other parties. His object in calling MCSPADDEN was that MCSPADDEN might

enable him in some way to get the money. They discussed it, and MCSPADDEN,

not having the money, suggested they see appellant, who was president of the

State Amarillo Bank, and get him to furnish the money. Appellant was called,

and MCSPADDEN's testimony is to the effect that after discussing it

appellant agreed to furnish the money; MORRIS and MCSPADDEN signing the note

at the bank for $5,000. There was something said to the effect that it was

not probable that the option could be bought at $5,000; that it might take

more money. MCSPADDEN further testified that appellant, MORRIS, and himself

agreed that MORRIS and MCSPADDEN were to sign a note to the bank and have

the money transferred to their credit, and that appellant was to be a

partner in the profits and maybe losses, but his name not to be known in the

matter, and in this way that appellant became a partner in the purchase of

the cattle option contract. He also testified that there was no other cattle

contract, in contemplation or discussed between them at the time. His

language was:

"Yes, sir; it was agreed that Mike C. LE MASTER was to advance the money on

the condition that I went along and used what influence I possessed to keep

MORRIS from getting drunk, and Gus agreed not to get drunk any more, and

straighten up. There was nothing said at that time about any other

transaction. We were to do the best we could. We did not know exactly how

much money it would take, but we were to let Mr. LE MASTER know. We wanted

to get an option on the cattle for spring delivery and then sell the option.

The agreement was that Mr. LE MASTER was to advance the money to be paid as

a forfeit on the cattle and MORRIS and myself were to go out there and get a

contract and purchase them and sell the contract."

This occurred on the 26th day of December, and on the 27th a note was

executed by MORRIS and MCSPADDEN to the bank, appellant's name not appearing

in any of these matters. Upon signing the note MORRIS and MCSPADDEN left

Amarillo and went to El Paso. They there got in touch with the owners of the

cattle and bought the option. The owners of the cattle, however, required

$8,000 instead of $5,000. By wire appellant was notified of that fact. He

took the MORRIS and MCSPADDEN note and wrote above the 5,000 3,000. The

intention it seems was to make the note for $8,000 instead of $5,000. The

deal was made, and in three or four days the option was transferred at a

profit of considerable amount and closed out, and MORRIS and MCSPADDEN came

back to Amarillo and deposited the money in the state bank at Amarillo, and

on the 6th of January took up and paid off the note. Appellant was not in

Amarillo at the time, but was in Ft. Worth. He knew nothing about the

payment of the note until later information was conveyed to him. MORRIS

testified in many respects as did MCSPADDEN, but he denied that LE MASTER

had or was to have any interest in the option contract, and was in no way

connected with the profits or losses. In fact, he was in no sense, or in no

way interested in the contract, nor was he to receive any profits,

dividends, or pay any losses. Appellant testified in his own behalf as did

MORRIS. After returning to Amarillo and taking up the note MCSPADDEN and

MORRIS, without the knowledge of appellant, went to New Mexico with a view

of purchasing other cattle. Appellant had nothing to do with this and knew

nothing of this matter.

[1][2] There were other subsequent cattle deals by MCSPADDEN and MORRIS

which the state undertook to connect appellant with by MCSPADDEN's

testimony. Both MORRIS and appellant denied that there was any partnership.

There was evidence introduced by the state to show these subsequent

transactions over the protest and objection of appellant. We are of opinion

these objections were well taken. The court also failed to limit this

testimony. Having admitted the testimony, the court should have limited it.

It was not in reference to the original case and could not be, and if it was

introduced for any purpose it was to show that by reason of the subsequent

transactions between the parties that they were partners in the original

transaction declared upon in the indictment. As before stated, we are of

opinion these matters should not have gone before the jury, but having been

permitted to be introduced, the court should have limited them to their

proper office in his charge. The state's testimony as well as that for the

defendant all agree that if appellant had any connection with any of these

transactions it was the one based on the note, and the sum finally drawn

from the bank of $8,000, which was paid back within ten days by MORRIS and

MCSPADDEN. MCSPADDEN says there was no other transaction in contemplation or

under discussion. MORRIS uses the same language and testifies to the same

thing, so does appellant. So it would be evident that subsequent

transactions if entered into independent or disconnected with the

first, not growing out of or related to it in any way, could not come into

the case as testimony on the question of partnership in the first

transaction.

There was nothing said, as MCSPADDEN, MORRIS, and LE MASTER all testify, as

to any other trade either then or in contemplation for future dealings. The

fact that later they may have made other trades, or that appellant may have

become interested in later transactions, could not afford testimony proving

a partnership in a single transaction which begun and ended with itself.

These latter matters had no relation to or bearing upon the case; they did

not serve to identify or develop the case; were not res gestae, nor could

possibly reach the question of system. The matter is here dealt with

generally without going into details as shown by defendant's bills of

exception with reference to these matters. There are several of these

matters, all of which upon another trial should be excluded.

[3] The state introduced Mr. MOOD as a witness, and was proving by him some

matters that occurred on the trial of a civil case in which he took down the

testimony as stenographer. It seems they were seeking to prove the

testimony of apellant while testifying in his own behalf on the trial of the

civil case. There are several pages of these questions and answers set out

in the bill so as to make it clear and plain. It developed in his testimony

that on the trial of the civil case appellant won; that the jury found a

verdict in his favor. When the testimony of Mr. MOOD was complete, or they

had become satisfied about it, the state moved to exclude all his testimony

from the consideration of the jury. The appellant excepted. The state's

counsel put their motion to withdraw the testimony on the ground that they

did not purpose to introduce the record in the civil case. These matters are

generally stated, and not the details. We are of opinion that the objections

of the defendant were well taken. The testimony should have remained before

the jury. Among the early cases on this question in Texas is SPEIGHT v.

State. The first section of the syllabus of that case

sufficiently states the question:

"If the accused elicits testimony adverse to himself, he must take the

consequences; and he is not entitled to have it withdrawn from the jury

because part of the same proof, when offered by the prosecution, had

previously, on his objection, been excluded by the court."

In that case the defendant moved to exclude testimony introduced by himself

that he thought adverse to him. The state would occupy no better position

under the same circumstances than would appellant. The testimony, as said in

the SPEIGHT Case, if illegal at all, was his own testimony, and we opine he

ought to be held to take the consequences, and could not exclude it simply

because it was found to be unfavorable to his case. In MOORE v. State the question came again. The headnote of that opinion is as

follows:

"If the defendant elicits testimony adverse to himself, he must abide the

consequences; and that a state's witness, upon cross-examination by the

defendant, testified to a confession made after arrest, is not cause for

a new trial, as having improperly gone to the jury."

The doctrine was approved in ALLEN v. State and ROBINS v.

State. In the case of MCDADE v. State the question again came. At page 689 of that

report the court said:

"In the seventh assignment of error it is complained that 'the court failed

to instruct the jury that the declaration of ALLCHIN to FELKER that threats

had been made against him by defendant was not any evidence that such

threats were made, and that they should not consider such statement as a

part of the evidence for that purpose, when it was expressly requested so to

charge by defendant.' This evidence was drawn out by defendant upon the

direct examination of his witness FELKER, and neither the prosecution nor

the court was responsible for it. If the defendant elicits testimony adverse

to himself he must abide the consequences"--citing SPEIGHT v. State and MOORE v. State.

The state having introduced Mr. MOOD as a witness, and his testimony being

introduced without objection from the defendant, the state could not,

because the testimony was somewhat damaging to its case, withdraw it from

the jury. The state introduced it and could not withdraw it over objection

of appellant. The above cited cases seem to settle that question.

There are exceptions to the second subdivision of the charge on various

grounds. This subdivision limits the jury to the second count, and charged

if the jury should find appellant was an officer duly elected, qualified,

and acting president and a member of the board of directors of the state

bank, and that the bank was incorporated, etc., and he became indebted to

that bank in the sum of $8,000 without proper authority from the board of

directors, they should convict him. It will be noticed in this connection

that this charge submits the fact that he was president and one of the board

of directors. The indictment, while it mentioned the fact that he was an

officer and member of the board of directors, it did not attempt to charge

him with being guilty of violating the state law as a director, but only as

president or acting president. The president cannot borrow any amount of

money from the bank without proper authority. The indictment did not

undertake to charge any matter that would make him criminally liable as a

director. He was charged as the president of the bank, and not as a member

of the board of directors. If he was sought to be convicted as a director,

then the charge should have specifically brought that matter to the

attention of the jury.

[4] It will be noticed that this charge does not undertake anywhere to

inform the jury as to the relation of appellant to the amount of money or

the circumstances by which he could have possibly been indebted to the bank.

All the testimony and the indictment excludes the idea that his name was on

the bank books. The proof all shows that it was not, and that there was no

contract and no evidence in the bank books, records, or papers that his name

was in any way connected with any indebtedness to the bank. The only

way by which it was sought to hold him liable was through the testimony of

MCSPADDEN that he was a secret partner in the profits and losses that might

arise in the option contract which MORRIS and MCSPADDEN accomplished and for

which the bank is supposed to have furnished the $8,000. In order,

therefore, to hold appellant guilty, the charge should have conformed to the

facts, and in order to hold him the state would have to show that he was

guilty under the circumstances detailed by the state's witness as partner.

In other words, in order to convict appellant the jury should have been

instructed that they would have to find that appellant became indebted to

the bank by means of this partnership matter about which MCSPADDEN

testified. This was the state's case, and it was all the state had or put

into the trial. In this same connection it may be well enough to notice that

section 3 of the charge is a general statement of the law of partnership as

understood by the court in giving his charge, and it reads as follows:

"A partnership is formed by two or more persons placing their money,

effects, labor and skill or some one or all of them in business with the

purpose and intention of dividing the profit and bearing the loss in certain

proportions and may be made and entered into either by express agreement,

oral or written, of those forming the partnership, or it can result from the

conduct of the parties in relation to the business. Those forming the

partnership are partners. When a partnership is formed each individual

partner in relation to partnership business in law binds himself and each of

the other members of the partnership jointly and severally for any

partnership obligations made in furtherance of the partnership enterprise

and within the scope of the partnership business."

[5][6] This is all the charge with reference to partnership. It will be seen

that it has no reference to and is not connected back with the other charge;

nor does the other charge refer to partnership, nor is the jury charged that

if appellant was a partner within the terms of the law with MCSPADDEN and

MORRIS, and under that partnership there was or could be an indebtedness

created for which appellant would be responsible, they might convict. This

definition of partnership is thrown into it in a general way without any

application of the rule of partnership to the facts in the ease, or facts of

the case to the partnership. In the second clause of the charge which

submits the law for conviction the partnership is not mentioned. Under the

facts it was all the state had upon which to predicate a conviction. In the

charge on partnership it does not inform the jury that if appellant

connected himself with this indebtedness by means of this partnership, and

was responsible under the terms of the contract by reason of this

partnership, that he might be liable for the indebtedness, but instructs the

jury to convict for the indebtedness in the second clause, and gives a

general definition without any application of the law to the facts of

partnership. If appellant was guilty at all it was under MCSPADDEN's

testimony to the effect that he agreed to divide the profits and losses and

carry the partners under the contract, and that he did furnish the money

from the bank. The state admits error in the charge on partnership as given,

but asserts the error was favorable to appellant. It was error, and we think

harmful. The error is conceded; the verdict was guilty. What may have been

the verdict under a correct charge is speculative, but it is not speculative

that he was found guilty.

[7] There is another phase to this charge that is fatal. MCSPADDEN swore to

this partnership as set out in the early part of the opinion. MORRIS and

appellant denied it emphatically. There was an issue sharply drawn by this

testimony as to whether this partnership existed or not. The bulk and the

weight of the testimony was that the partnership did not exist. The jury so

found by their verdict in the civil proceeding and exonerated appellant as

partner and found in his favor in the suit against himself and MORRIS by

MCSPADDEN. This was shown by the testimony of MOOD. Now the converse of the

proposition, had the partnership been properly charged, was if the jury

should find there was no partnership existing between these parties at the

time, they should find in his favor and acquit him. Such omission is fatal

error.

[8] It is contended that the evidence is not sufficient to show that

appellant was a partner, and that through the partnership became indebted to

the bank. The writer is of opinion that this proposition is correct.

MCSPADDEN testified, and he alone, that appellant was to be connected with

the profits or losses, and MORRIS testified positively that such was not the

case, and that he and MCSPADDEN alone were responsible, and that he was to

get two-thirds of the profits and MCSPADDEN one-third, and that appellant

had nothing to do with it. MCSPADDEN testified they were to be equal

partners, each getting a third. There were some telegrams passing between

the parties with reference to this $8,000 option contract introduced by the

state, but these did not show that a partnership existed. It was with

reference to the fact that the $5,000 first agreed upon and mentioned in the

note was not sufficient, and appellant agreed to furnish the extra $3,000

from the bank, and later wrote it in the note. The note was payable to the

bank, and appellant was in no way concerned with it, and if he was connected

in any manner with it it was by reason of MCSPADDEN's testimony, which

appellant and MORRIS both denied. As it occurs to the writer, there is no

testimony which supports or corroborates MCSPADDEN in his statement. If,

however, the state should further prosecute, the testimony should be limited

to the transaction about which the witnesses testified and not extend it to

subsequent contracts in no way connected with or related to the one under

investigation.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

[9] On a former day of the term the judgment was reversed and the cause

remanded. The state contends in a motion for rehearing that the court was in

error in holding that the indictment was not valid. It was stated that the

general allegation that appellant had become indebted to the bank in the sum

of $8,000 was not specific enough and entirely too general; that it was

wanting in particularity, and failed to inform the defendant of the

transaction, for which he was to be tried. The writer, upon further

investigation, still adheres to his original views. The majority, however,

do not agree with him. Under the view of the majority the former opinion

will be modified and the indictment held sufficient to charge appellant in a

general way with becoming indebted to the bank in the specified sum. The

indictment contained three counts. The first set out the facts attending the

transactions by which it was sought to connect appellant with violating the

banking law, he being president of the bank. That count, however, was not

submitted to the jury by the court, and passed out of the case. The second

count was submitted in which the general allegation was made that appellant

became indebted to the bank of which he was president. Under these

allegations the state would be required to prove that appellant had become

directly indebted to the bank, and that proof of the matters and facts set

up by the state in its evidence would not meet the count upon which the

conviction was obtained, which evidence was to the effect that appellant and

MCSPADDEN and MORRIS entered into an agreement by which they were to buy

cattle and the bank furnish the money, predicated upon a note given by

MCSPADDEN and MORRIS, and the money transferred on the books of the bank to

their credit, and that appellant would be a partner in the profits and

losses of the cattle transaction for which the note was given to secure

funds in payment of the cattle. Appellant's name does not appear anywhere

either in the note or on the bank books, and on the face of the transaction

he is not directly shown to be connected with any of those matters. In other

words, it was a secret partnership, if it existed. This was perhaps the most

serious question in the case so far as the evidence was concerned. So

following the views of the majority, the count will be held sufficient to

charge an offense, but not to admit evidence of the transactions showing an

indirect liability as sought by the state; that this would be a variance

between the allegation in the count submitted and the evidence, and

therefore the evidence did not support the finding of the jury under the

count and the charge submitting that count.

In regard to what was said in the original opinion with reference to a bill

of exceptions which contains matters and things set out through the witness

MOOD, the state contends that the opinion was in error in holding that

state's counsel was responsible for withdrawing all the testimony of MOOD

from the jury. The contention is that the state did not withdraw the

statements of MOOD on cross-examination by appellant's counsel to the effect

that appellant had won the civil suit. Strictly and technically speaking

this contention may be correct. The bill in regard to this matter shows that

when MOOD was placed upon the stand and the various questions asked and

answers elicited, he was then passed to appellant's counsel for

cross-examination, and, among other things, it was elicited from him that

appellant had won the civil suit in which MCSPADDEN sued MORRIS and himself

for settlement of alleged partnership matters, which involved the $8,000

matter. State's counsel objected to this cross-examination as to the matters

elicited from MOOD, but the court overruled the objection upon the ground

that the state had drawn out the matter, and this was a legitimate

cross-examination. When this occurred the bill of exceptions recites that:

"Thereupon the state rested, and stated they desired to consult a moment,

and within a few minutes returned to the court, and through their private

prosecutor, Mr. MARTIN, stated to the court, 'We are not going to introduce

any of the record, and we ask that the court strike out the testimony of Mr.

MOOD in regard to it.' (The record referred to being the transcript of what

purported to be the statement of facts in the case of W. A. MCSPADDEN v. R.

A. MORRIS et al., in which the state's counsel had attempted to prove up by

A. M. MOOD for the purpose of offering the same and parts thereof to impeach

the defendant as a witness.) The court then stated, 'What part of the record

do you have reference to?' Mr. MARTIN stated in reply to such question, 'All

of Mr. MOOD's testimony identifying the record, since we are not offering

any of the record, that evidence would serve no purpose. We do not intend to

offer the record, and we would like to have this testimony stricken from the

record, since it does not tend to prove any issue in this case."'

Thereupon defendant's counsel objected to the withdrawal of any of the

testimony by the state for the reason they had offered the same, and when it

was proved harmful to them they desired to withdraw it, and that it was

material and beneficial to the defendant, and that they had no power to

withdraw it when they had offered it themselves, and they considered it

harmful to then be permitted to withdraw it. The court, not specifically

ruling on the objection, turned to the jury and instructed them as follows:

"I will strike out and instruct the jury not to consider the testimony of

Mr. MOOD."

In the former opinion the writer was under the impression that, legally

speaking, state's counsel were responsible for being really the moving

parties in getting the matter before the jury as well as to its final

withdrawal or exclusion after putting it in before the jury; that it was too

late for the state to withdraw it after cross-examination of the witness in

reference to the matter they had drawn out; and that their motion, had it

been sustained, would practically have operated to withdraw all the

testimony of the witness MOOD, whether it was direct or

cross-examination. If the writer was in error about this, then counsel for

the state may not have been altogether responsible for the withdrawal of

MOOD's testimony favorable to the defendant. But the matter was so

intermingled--the direct and cross examination taken--with the remarks of

the court it occurred to the writer that the effect of the state's

motion was to withdraw all the testimony, especially in view of the fact

that this motion was not made until after MOOD developed the fact that

appellant had won the civil suit. This testimony seems to have been

introduced by the state for the purpose of laying some predicate with

reference to the case and the testimony of defendant in the civil suit, but

when MOOD testified to the fact that appellant had been eliminated from that

record by the verdict of the jury, counsel moved to exclude or withdraw the

testimony from the jury. State's counsel insist strenuously that they did

not undertake to withdraw the testimony introduced on cross-examination, and

that they were only undertaking to withdraw that which they introduced.

Without going into any detail about the matter, or any discussion, we place

it as the record does, so that it will be fully understood and its effect

and result from the whole bill of exceptions may not be unjust to either

side. The result, however, would be the same. This testimony was withdrawn

from the jury, and under the circumstances it should not have been

withdrawn. It is deemed unnecessary to discuss the other matters.

Finding no reason why the motion for rehearing should be granted, it is

ordered that said motion be overruled.

====================

Tex. 1883.

RICHARD WOOLDRIDGE v. N. E. GRIFFITH ET AL.

59 Tex. 290, 1883 WL 9157 (Tex.)

(Cite as: 1883 WL 9157, *1 (Tex.))

Supreme Court of Texas.

RICHARD WOOLDRIDGE

v.

N. E. GRIFFITH ET AL.

Case No. 4022.

Apr. 24, 1883.

A summary judgment rendered against the sureties on an appeal bond by a

county court on appeal in a criminal case, without citation to, or service

on, the surety, is void, and probably void in any event.

*1 APPEAL from Lamar. Tried below before the Hon. R. R. GAINES.

Suit by Richard WOOLDRIDGE in trespass to try title and to remove cloud,

etc., against the appellees, claiming title to the land by virtue of a

judgment (described in the opinion) and execution, sheriff's sale and deed

thereunder.

Appellees answered by general denial and not guilty. Judgment for appellees.

The question involved was as to the validity of the judgment of the county

court of Lamar county, upon which appellant relied.

Wm. H. JOHNSON and WOOLDRIDGE & PHILIPS, for appellants, cited Const., art.

V, sec. 22; Acts of the Legislature, 1876; RICHARDSON v. State; Ex parte OLIVER Gen. Laws 15th Leg.; JANES et al. v. REYNOLDS' Adm'r; LITTLE v.

BIRDWELL; FREEMAN on Judgments; WEAVER v. SHAW; MILLS v. ALEXANDER; THOUVENIN v. RODRIGUES; MOKE v. BRACKETT; GIDDINGS v. STEELE; HOLLINGSWORTH v. BAGLEY; MCCREERY v. FORTSON; Milam Co. v. ROBERTSON.

J. M. LONG, for appellees.

WATTS, J. COM. APP.

In deraigning title to the land in controversy, appellant relied upon a

judgment, execution and sheriff's sale and deed. The judgment so relied upon

was rendered in a criminal case arising in the mayor's court of the city of

Paris, Lamar county, wherein one Bob DENTON was fined $1 and costs,

amounting to $22.35, from which he appealed to the county court and gave the

bond prescribed by statute, with John HUGHES, Creed TAYLOR and J. M. LONG as his sureties. DENTON failed to appear before the county court when the case

was called for trial, when the county court, without further proceedings,

rendered judgment against him and his sureties upon the appeal bond for the

amount of the fine and costs in the mayor's court, and also the costs of the

county court. By virtue of that judgment the execution was issued and the

sale made, upon which appellant bases his claim of title to the land in

controversy.

In trespass to try title to land, the cardinal rule is that the plaintiff

must recover upon the strength of his own title. Now in this case, if the

judgment was not void as against the surety, LONG, whose property was

pretended to be sold by virtue of the same, then the appellant was entitled

to a judgment for the land. But on the contrary, if that judgment is

considered as void as to the sureties, then the court did not err in

rendering the judgment against appellant.

*2 A judgment rendered against a person when he is not before the court, and

who has not been made subject to its jurisdiction by some of the modes

prescribed by law, must be considered as of no effect. Otherwise, in

violation of the bill of rights, a citizen might be deprived of his property

in other modes than by the due course of the law of the land. There is

nothing in the act of 1876 that attempts to give an appeal bond like that

under consideration the force and effect of a judgment. Nor are the sureties

on such a bond thereby made parties to the suit, so as that service upon

them might be dispensed with in rendering judgment against them upon the

bond. It would seem that the extent of the power of the county court, in a

case like DENTON's, would be, when he failed to appear and prosecute his

appeal, to dismiss the same. The city of Paris could then have proceeded

upon the bond according to its terms, by judgment nisi, or suit on the bond,

but service upon the surety in either case is indispensable.

In our opinion the judgment by default against the sureties upon the bond,

without any notice to them whatever, is a nullity, and, therefore, there is

no error in the judgment and it ought to be affirmed.

AFFIRMED.