even with the aid of the testimony that the [ increase of other separate property was considered her property; nor do we think that the testimony by her of her acts conclusively shows that the seed was actually delivered into the possession of the wife.

[5] The testimony of the witness Corey, on market value, assailed by appellant, was improper. We interpret his testimony of value as having been based upon the value of seed which had passed inspection and was entitled to admission in the Sudan Grass "A mere intention, or naked promise to give, Seed Association, under the rules of that aswithout some act to pass the property, is not a sociation, which he said was worth 60 cents gift. There exists the locus penitentiæ so long as the gift is incomplete and left imperfect in per pound. This record does not show that the mode and manner of making it. ** *this seed had gained that standard. He furThe donor must part, not only with the possession, but with the dominion of the property." Chevallier v. Wilson, 1 Tex. p. 161.

[3] The courts of this state have establish[3] The courts of this state have established the principle that a case wholly dependent upon the uncorroborated testimony of a party interested in the litigation, though unopposed by other witnesses, is for the jury, and they have the right to weigh the credi

bility of the witness. Rayner v. Posey, 173 S. W. 249, and numerous cases cited, including one by the Supreme Court of the United States. There may be exceptions to this rule, but we believe the general rule would apply to the character of case manifested in this record.

The trial court erred in the peremptory

instruction.

[4] The appellant also assigns error to the action of the court in permitting the testimony of Mrs. McWhorter, on the market

value of the Sudan seed. The bill of exceptions we find as the basis of this assignment is one which exhibits testimony, in effect, that she had endeavored to keep posted as to the value of Sudan seed, and had been making investigations and inquiries with reference to the value, and had heard the matter "discussed," and believed that she knew as much about it as any lady could know. What the "discussions" were in regard to value-whether between parties offering to sell or purchase, witnessed by her first hand, or whether they were mere speculative opinions of others-is not shown on cross-examination. To pass upon a close question of qualification as presented by this bill is unnecessary, for the reason that a cross-examination of the witness (not shown in the bill) discloses that all she knew about

the market value is what she heard other people say, which is the serious complaint of appellant, but with no further objection to the testimony, or motion to strike, presented. If the witness had no personal knowledge of the value of the seed, but her opinion was based merely upon what others informed her as to the value of the same, the testimony is based upon the unaccredited statements of others, and is hearsay. Such testimony with such basis is improper. Railway v. Maddox, 75 Tex. 305, 12 S. W. 815; Railway v. Arnett, 40 Tex. Civ. App. 78, 88 S. W. 448; Railway v. Crowley (Civ. App.) 86 S. W. 342; Railway Co. v. Hughes, 44 Tex. Civ. App. 137, 98 S. W. 410; Wigmore on Evidence, vol. 1, § 719, pp. 915, 916.

ther said, on cross-examination, that he was
not familiar with the situation at that time,
and that he had not known of any sales, and
had been too busy to give that matter any
thought.

because he had no personal knowledge of
We are not holding the testimony improper
sales; a witness may acquire some knowl-
edge of market value from competent sourc-
and without the charge of hearsay. Wig-
es of information without direct knowledge
is too weak to be considered.
more on Evidence, supra. But this testimony

The solution of the questions in regard to the inadequacy of the pleadings and the burden of proof, as bearing upon the issue of the gift by the husband to the wife, in becomes academic in view of the reversal, violation of the rights of creditors, probably by its development, will probably be difas the record upon another trial, and the case

ferent.

The cause is reversed and remanded for a new trial.

AHEARN v. STATE. (No. 3691.) (Court of Criminal Appeals of Texas. Oct. 27, 1915. On Motion for Rehearing, Nov. 24, 1915.)

HOMICIDE

49-MURDER-MANSLAUGHTER. That decedent called accused a bastardly son of a bitch did not raise the issue of manslaughter, on the theory that the language was insulting towards accused's mother, though accused testified that he shot decedent because of the insulting remark.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 73; Dec. Dig. 49.]

las County; Robt. B. Seay, Judge.
Appeal from Criminal District Court, Dal-

Robert Ahearn was convicted of murder, and he appeals. Affirmed, and motion for rehearing overruled.

W. W. Nelms, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant appeals from a conviction of the murder of Robert Burns, his punishment being assessed at 25 years in the penitentiary.

We have carefully read the statement of facts. We think the testimony, without any doubt, is ample to sustain the conviction. There is but one question to be discussed. Appellant claims that the evidence raised, and the court should have submitted, man

slaughter. We are clearly of the opinion | merely an insult to the defendant himself, that the appellant's contention cannot be sustained.

and not in the nature of a slander or insult towards a female relation." Also in Trevino v. State, 72 Tex. Cr. R. 91, 161 S. W. 108, this court expressly held that, where the deceased said to the appellant that he "was the son of a whore and disgraced," this was no insult towards his mother, and did not raise manslaughter. This court has also repeatedly in a large number of cases held that to call another "a son of a bitch," or "a Gd d-n son of a bitch," is no insult to the appellant's mother, and does not raise manslaughter.

The judgment is affirmed.

On Motion for Rehearing.

Appellant was a waiter in an all-night restaurant. Just after midnight the deceased, Burns, with a companion, went into the restaurant to get a meal. They sat down at the eating counter. One of the state's witnesses, Mr. Conner, among other things, testified: That the head waiter directed appellant to wait on Burns and his companion. Appellant said, "Let them sons of bitches get out of here; I am not going to give them two orders." Burns said, “FBurns said, "F-k them, Bob;" and appellant replied, "You cannot f-k me, you son of a bitch; you haven't got enough money-" That appellant then went right in front of Burns, the narrow In his motion for rehearing appellant calls counter, about two feet wide, only separat- our attention to an inaccurate statement in ing them, and said to Burns: "God damn the original opinion on one point. In stating you, if you want to start something, crack Mr. Conner's testimony, we stated he testidown." That other words passed between them, and appellant whipped out a sixshooter, and pointed it in the face of the deceased, when another one of his companion waiters told him to put up the gun and have no trouble. Very soon he snapped the pistol once in deceased's face, and then immediately fired at him three times in succession; one ball striking him in the temple, going into his head and brains, which resulted in his death very soon afterwards. appears that each used epithets towards the other; each calling the other, with profane language, a son of a bitch.

It

Appellant himself testified that during the wordy profanity and indecent language, one towards the other, the deceased, Burns, said to him, "You Gd d-n bastardly son of a bitch, if you will come outside, I will kill you;' and I said, 'Burns, there is no use for any argument or any trouble;' and he said, 'Yes, Gd d-n you, you bastard;" and that when Burns said that it made him mad, he lost control of himself, and shot and killed him. He says, "I shot him because he called me a bastardly son of a bitch." Mr. Fox testified he asked appellant why he shot deceased, and he replied, "I shot him because he said I was a son of a bitch;' he didn't say anything else." The testimony of several other witnesses shows that appellant was very mad with Burns at the time.

Appellant claimed that this language was insulting towards his mother, which raised the issue of manslaughter. This court, in a case very similar to this (Fitzpatrick v. State, 37 Tex. Cr. R. 33, 34, 38 S. W. 806), expressly held that, where the deceased in that instance said to the appellant, "You Gd dn mother-f- -g son of a bitch," did not raise manslaughter; that "this was

fied that the head waiter directed appellant to wait on Burns and his companion. This should have been on two negroes instead of deceased and his companion. What we quoted that appellant then said was directed to the head waiter about the negroes. To that statement deceased remarked as quoted in the opinion. However, we gladly make the correction to which appellant calls our attention.

Appellant next complains of this statement in the original opinion: "The testimony of several other witnesses shows that appellant was very mad with Burns at the time," claiming that this is not in accordance with the statement of facts. We have again read the statement of facts, and on this point it shows that said witness Conner, who was the first introduced by the state, on this subject, testified: "He (appellant) seemed to be in an ill humor. He looked more like a demon than anything else. He seemed to be very angry. He seemed to be excited then." On cross-examination on this point this witness, among other things, said: “He (appellant) appeared to be enraged when I looked at him. When I looked at this man he appeared to be angry, enraged and terribly excited." Mr. McKellar, the next witness for the state on this point, on crossexamination, testified: "I don't know that Ahearn appeared to be excited at the time the shots were fired, but he was sorter angry looking." Mr. Luth, the state's next witness, on re-direct examination testified: "Ahearn never seemed to become angry before that time when they used that language." This testimony is all of the testimony on the subject of appellant being mad, except what appellant testified himself, which is stated in the original opinion. The motion is overruled.

of giving appellant 72 months, they finally, after discussion, agreed to give him 6

LUNA v. STATE. (No. 3788.) (Court of Criminal Appeals of Texas. Nov. 3, months. 1915.)

1. CRIMINAL LAW 1092, 1099- BILLS OF EXCEPTION-FILING AFTER ADJOURNMENTNECESSITY FOR ORDER.

Where the statement of facts and bills of exception in a criminal case were filed after adjournment of court, without an order entered for the purpose, they will not be considered.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 28662880, 2919; Dec. Dig. 1092, 1099.]

2. CRIMINAL LAW 866- MISCONDUCT OF JURY-VERDICT BY LOT.

We notice this, because it may be it should be considered independent of the bill of exceptions, on account of the affidavits attached to the motion for new trial. But as presented there is shown no error from any viewpoint.

The judgment will be affirmed.

PARK V. STATE. (No. 3630.) (Court of Criminal Appeals of Texas. June 25, 1915. On Motion for Rehearing, Nov. 17, 1915.) 55-EVIDENCE-SUFFICIENCY. Evidence held to sustain a conviction of

1. LARCENY

Where, in a prosecution for theft, to decide the term of imprisonment the jurors agreed to put down what each juror thought was right, add it up, and divide by 6, which resulted in 712 months as the punishment, but, after debating the matter, the jury concluded not to follow such theft. result, but to give defendant 6 months' imprison[Ed. Note.-For other cases, see Larceny, ment, and so wrote their verdict, in the absence Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. of showing that before their first attempt to set-55.] tle the verdict by lot the jury bound themselves to stand by it, such conduct of the jury presented no error.

On Motion for Rehearing.

2. CRIMINAL LAW 200-SEPARATE OFFENSES-BURGLARY AND LARCENY.

Under Pen. Code 1911, arts. 1317, 1318, providing that one who commits burglary, and who while in the house burglarized commits any other offense, shall be punished for burglary, and for the other offense, a theft committed at the

Cayetano Luna was convicted of theft, same time and in the same transaction of a burand he appeals. Affirmed.

J. W. Wilson, of Falfurrias, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J. Appellant was convicted for the theft of a gun; the allegation being that the gun was worth $15.

[1] The statement of facts and bills of exception cannot be considered. They were filed after adjournment of the court, and without an order entered for that purpose; therefore they will not be noticed in the disposition of the case. This about disposes of the record and questions presented in it.

[2] There is one question that perhaps we might notice; that is, the misconduct of the jury, or rather the fact that the jury determined their verdict by lot. This is set out This is set out in a bill of exceptions; but it is also made a part of the motion for a new trial, with appended affidavits. The affidavits show that, after the jury retired to consider their verdict, they had not agreed or determined among themselves exactly the length of imprisonment in the county jail. To settle this they agreed among themselves to put down what each juror thought was right, add it up, and divide by 6. This brought 72 months as the punishment. After discussing the matter a while, they concluded not to follow this, but decided they would give appellant 6 months in the county jail, and so

wrote their verdict. It is not shown that the

jury, before they added up and divided the number of months, bound themselves to stand by this verdict or quotient. Instead

glary is separate from the burglary, and accused may be convicted of both.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. 200.1

3. INDICTMENT AND INFORMATION 137 QUASHING INDICTMENT-GROUNDS-FORMER JEOPARDY.

That an indictment charges the same offense charged in another indictment under which accused has been convicted is not ground for quashing the indictment, but accused, to raise the point, must plead former jeopardy.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. 137.]

4. CRIMINAL LAW 730 — TRIAL
DUCT OF STATE'S ATTORNEY.

MISCON

The act of the state's attorney in asking, on the cross-examination of accused on trial for theft committed at the time of his commission of a burglary, if he had not been convicted of court sustained an objection to the question, and the burglary was not reversible error, where the at accused's request at the time directed the jury not to consider the question, as it had nothing to do with the case.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. 730.] 5. CRIMINAL LAW 1119 - MISCONDUCT OF

STATE'S ATTORNEY-BILL OF EXCEPTIONS.

A bill of exceptions, complaining of the remark of the state's attorney when a witness presented and identified an instrument, "They are just taking up the time of the court for nothing," presents no reversible error, where it does not show how and in what way the remark affected accused's case.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. 1119.]

6. CRIMINAL LAW 1119 MISCONDUCT of
STATE'S ATTORNEY-BILL OF EXCEPTIONS.
A bill of exceptions, showing that accused
excepted to the remark of the state's attorney,

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. & Texas Railway Company of Texas from 1120.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appellant again, in his motion for rehearing, as was done when this cause was at first submitted, earnestly contends and argues to a considerable extent that the evidence was insufficient to sustain the verdict. Each member of the court has read and studied the evidence. We adhere to the original opinion that the evidence was sufficient.

themselves got back therein. That they! 1318, and cases cited thereunder. Besides, drove back towards town again, but before even if they were the same offense, it would they got there they stopped, all three got out, be no ground to quash the indictment, but taking the automobile tires with them, and must be properly pleaded as jeopardy. disappeared. Some of the automobile tires which were shipped in this car and stolen therefrom were afterwards traced to and found in San Antonio and recovered by the railroad. A San Antonio party bought these tires from one Billy Edwards. About this time Phillips loaned Edwards $50, who gave the money to Fred Thurmond, one of the parties who was with appellant and Terrell the night they got the tires when they drove to the stock pens, Edwards stating that the $50 was to pay Terrell for tires that he and appellant were in trouble about, and that he paid the money to Thurmond on the order of Terrell therefor. This is a mere outline of some of the testimony. Taking it as a whole, we think it amply sufficient to sustain the verdict. Whether appellant took the tires from the car while it was standing in the yard at Smithville, or took them from the car before he reached Smithville, would be immaterial, for wherever he first took the stolen property he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted.

This writer is of the opinion that the evidence in the burglary case, while not as full as in this case, was sufficient to sustain the verdict in that case.

After most careful consideration we have reached the conclusion that the evidence is sufficient to sustain the verdict in this case, and the judgment is affirmed.

On Motion for Rehearing. After the rendition of the original opinion herein, appellant's motion was granted for a certiorari to bring up copies of his motion to quash the indictment and his motion for a new trial and his bills of exceptions, which were omitted from the original transcript. The clerk complied and sent up an additional record containing these papers, which are now before us, and they have been duly considered.

[4] In his first bill of exception it is shown that the state's attorney asked appellant, on cross-examination, for the purpose of impeachment, if he had not the day before been convicted of burglary. He objected to this question. The court sustained the objection and, at his request, at the time, instructed the jury that they were not to consider the question at all; that it had nothing whatever to do with the case one way or another. Notwithstanding this, appellant excepted to the mere asking of the question. This bill presents no reversible error. Martoni v. State, 167 S. W. 351, and authorities there cited; Sweeney v. State, 146 S. W. 883, and authorities there cited.

[5] Appellant's next bill, after the proper style and the usual "Be it remembered," states that "the following proceedings were had, to wit. Then follows more than two pages of typewritten matter, which consists of questions asked, objections made, ruling of the court, answers of the witness, and the remarks of the attorneys for both sides. On the first page the only thing we can see that he complains of to which he excepted is that, in a brief argument, when the witness Vann presented and identified the original waybill for the shipment of the tires alleged to have been stolen, this remark of one of the state's attorneys was made: "They are just taking up the time of the court for nothing." How and in what possible way that injuriously affected appellant's case we are unable to see, and he in no way attempts to show in the bill, and, of course, it presents no reversible error. On the next page of this bill and what follows on the page following, there appears to be nothing to which appellant excepted at the time, and no error is presented thereby.

[2, 3] Appellant's motion to quash the indictment gives as the only reason therefor "that on yesterday, February 1, 1915, this [6] His next bill is in form exactly similar defendant was tried and convicted in State to the preceding one. It appears from it that v. F. L. Park, No. 2040, in this court, for the state introduced Harry Young for the the offense of burglary of a railroad freight purpose of attempting to prove the value of car, charged to have been in possession of the alleged stolen tires. The witness did not J. T. Hungate," who is the agent of a cer-qualify so as to testify to the values, and tain railroad company, and given two years did not testify to the values. The closing in the penitentiary, and claiming that he cannot be twice put on trial for the same offense. This case charges him with theft, not burglary. A conviction for theft committed at the same time, in the same transaction of burglary, is not the same offense, and accused can be convicted of both, as expressly-and to this remark appellant excepted, but provided by our statute. P. C. arts. 1317, no reason is given, and no possible injury is

remark of the prosecuting attorney after the witness had stated that he did not know the value so as to testify to it was this:

"Well, stand aside; if you have not sense enough to know the value of automobile tires, you can go,'