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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.




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