DURLEY v. STATE. (No. 3785.)

defendant to prove this defense. This paragraph of the charge is not subject to such

1915.)

1. CRIMINAL LAW 1170-RULINGS ON EVIDENCE-PREJUDICIAL ERROR.

Where, on a trial for cattle theft, a state's witness confessed that he was a thief and that he had aided accused in the theft, the exclusion of evidence on cross-examination that the witness had attempted to get a third person to aid in stealing cattle was not prejudicial, especially where the witness had already testified on the direct that he had talked with the third person about going with him and accused to steal cattle, and that the third person had refused.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. 1170.]

2. CRIMINAL LAW

829-INSTRUCTIONS-REFUSAL OF INSTRUCTIONS COVERED BY INSTRUCTIONS GIVEN.

Where the court gave a proper charge on an issue, it was not necessary to give a special requested charge thereon.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829.]

Appeal from District Court, Upshur County; J. A. Ward, Judge.

proved by this court. And, having given this charge, it was not necessary to give the special charge requested on that issue. The judgment is affirmed.

FONDREN v. STATE. (No. 3766.) (Court of Criminal Appeals of Texas. Nov. 3, 1915. Rehearing Denied Nov. 17, 1915.) 1. CRIMINAL LAW 1091 - QUESTIONS REVIEWABLE-STATUTORY PROVISIONS.

Under Code Cr. Proc. 1911, art. 938, providing that the court on appeal shall presume that the venue was proven in the trial court unless made an issue therein, and it affirmatively appears to the contrary by bill of exceptions signed and allowed by the trial judge, a bill of exceptions, complaining of refusal to charge to acquit because the venue had not been proven, does not show that the venue was made an issue during the trial and presents no question for review.

508-ACCOMPLICES—INCOMPETENCY-EXTRINSIC EVIDENCE.

HARPER, J. Appellant was convicted of cattle theft, and his punishment assessed at two years' confinement in the penitentiary. [1] Pomp Boren testified as a witness for the state, and stated that he, appellant, and Jake Bolton had stolen the cow. In a bill of exceptions it is shown that after the witness had been excused appellant recalled him, and desired to ask him:

"Did you not, just a short time before the killing of this Brawley cow, have a conversation with Early Skinner, in which just you and Early Skinner were together, in which you stated to him or asked him to go with you to kill some cattle, and he refused to do it?"

The court sustained the objection, and of this action of the qourt appellant complains. The witness Boren had confessed he was a thief, and had aided in the theft of the Brawley cow, and to prove that he desired to get Skinner to aid in stealing other cattle would not add to his moral turpitude. In addition to this, the record discloses that on direct examination he had testified that while rabbit hunting he had talked with Early Skinner about going with him and appellant to steal cattle, and Early Skinner had refused. So that the testimony sought to be elicited would have been but a reiteration of what he had already testified to when first called as a witness.

[2] The only other bill of exceptions in the record complains of the action of the court in overruling his motion for a new trial, and in it-the only other question than that discussed above-is that the charge of the court on alibi placed the burden on

Under Code Cr. Proc. 1911, art. 791, declaring that persons charged as principals, accomplices, or accessories cannot be witnesses for one another, and article 792, authorizing the court to interrogate a person offered as a wittestify, accused charged with gaming may not ness to ascertain whether he is competent to complain because the state proved that a witness called by accused was indicted for committing the same offense with accused, especially where the court erroneously permitted the witness to testify for accused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. 508; Witnesses, Cent. Dig. §§ 244-248.] 3. CRIMINAL LAW 11702 RULINGS ON EVIDENCE-PREJUDICIAL ERROR.

The state may, to disqualify accused's witness under Code Cr. Proc. 1911, arts. 791, 792, prove that he was also indicted for the same offense, and the mere fact that the court in perstated that the evidence was admissible to affect mitting the state to prove that fact erroneously the credibility of the witness was not prejudicial to accused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig.

11702.]

4. GAMING 72-CRIMINAL OFFENSES-"PRIVATE RESIDENCE."

Pen. Code 1911, art. 548, making card playing in any place other than a private residence occupied by a family an offense, makes it an offense to play cards in the private room of a boarder at a hotel or boarding house; the boarder being a single man and no family occupying the room.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig.

72.

First and Second Series, Private Residence.]

For other definitions, see Words and Phrases,

Appeal from Tyler County Court; Tom F. Coleman, Judge.

Pink Fondren was convicted of gaming, and he appeals. Affirmed.

Joe W. Thomas, of Woodville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $12.50.

Will Harris testified:

"I live at Warren, Tex. I am deputy sheriff of Tyler county, and was on January 16, 1914. I remember the occurrence on the night of January 16, 1914, where two parties and myself found Pink Fondren and Albert Pennington and Joe Williford. This occurred in an old store building and warehouse used one time by George Wooley; the back used as warehouse. It is composed of two rooms, the front room used at one time as a cold drink stand. We found the door on north side of back room barred and paper in the keyhole. We came around to the window and couldn't get in on that side. Got a stick, then got out my knife and cut a hole in an old comfort that was used as a blind over the window. It was a cheap comfort, with the cotton scattered in it, and you could see through it; cost about 75 cents or $1. They had two boards placed edge on edge at the bottom of the quilt as a dead fall. I could see motions of cards through the comfort, and after I cut it I could see them good. They were playing cards. I know they were playing cards. I watched them about 15 minutes, until I got tired."

[1] While the case was being presented to the jury, and after the evidence had closed, appellant requested the court to instruct the jury to return a verdict of not guilty on the ground that the venue had not been proven. This contention would have been sound had not article 938 of the Code of Criminal Procedure been amended in 1897. By that article it is now provided this court, on appeal, shall presume that venue was proven in the court below, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by bill of exceptions properly signed and allowed by the trial judge. The only bill in the record relating to this matter is one reserved to the failure of the court to give this special charge. This in no way evidences that venue was made an issue during the trial of the case, and, if in fact we take the record as a whole, the statement of facts evidences that no such issue was made on the trial, but the whole case proceeded upon the theory that the house in Warren in which the deputy sheriff of Tyler county says he found appellant and two others gaming was in Tyler county. Barker v. State, 47 S. W. 980. While it may be said that there is no one who swore positively that the house, in which the card playing is said to have taken place, was in Tyler county, yet the jury, under the facts and circumstances in this case, would have been authorized to so find had that been made an issue and the court submitted it to the jury in his charge.

[2, 3] By the above testimony it is seen that the state's witnesses testified that appellant, Albert Pennington, and Joe Williford were playing together. When the defendant called Joe Williford as a witness,

was under indictment for the same offense. The objection to the witness testifying should have been sustained. Article 791, C. C. P., specifically declares that Williford was not a competent witness for defendant. Article 792 provides that evidence may be introduced to prove him an incompetent witness. Consequently, there was no error in permitting the state to introduce evidence that Williford was indicted, charged with the same offense. The only error committed was in permitting the witness to testify after the state had made this proof. As the defendant called Williford as a witness, he will not be heard to complain that the state offered proof showing that he was an incompetent witness And especially has he no ground of complaint, since the court erroneously overruled the objection and permitted the witness to testify at his instance.

As to Albert Pennington, it was permissible for the state to seek also to disqualify him as he was also indicted for the same offense. However, there was no error in permitting him to testify for the defendant, as he testified he had paid his fine. convicted and paid his fine, this removed the bar of incompetency as a witness. The fact the court said he would permit the state to make the inquiry to affect the credit of the witnesses does not render the inquiry improper; it was only giving a wrong reason. The testimony was not admissible to affect their credit, but was admissible on the issue of whether or not they were competent to testify as witnesses for appellant. As before stated, the court erred in permitting Williford to testify for defendant after the proof had been made, but there was no error in permitting Pennington to testify as he showed he had paid the penalty. As the defendant got the benefit of both the competent and incompetent witness, it is a matter of which he cannot be heard to complain.

[4] Appellant contends that, if he did play at a game of cards (which he denies), it was in his room in Poland's boarding house. W. I. Poland testified:

"I lived in Warren, Tex., on the night of January 16, 1914. Was then, and my family are now, running the boarding house at Warren. I have two houses, about 100 yards apart. we live in, and the other I use for my boarders to room in, and the house in question where Joe Williford and Dick Barclay slept at that time was then used by me as a sleeping apartment for my boarders, and Joe Williford occupied the middle room, slept there and had all his clothes, a grip, etc., in that room, also at that time a man named Geo. Crone had his He asked me to let him store them in there for household goods in that room of Joe Williford. a few days, and I let him do so. They were moved in about two weeks, just so soon as he could get him a house. Joe Williford used that room just as any boarder uses a room to live and sleep in; it was his private room. He had been working and boarding with me about two or three months using the room in that manner."

Counsel cite a great many old authorities holding that it is no offense to play in one's

does not recall that this is no longer the law in this state. The statute now provides, and has provided for several years, that card playing in any place, other than a private residence occupied by a family, is an offense. See Pen. Code, art. 548, as amended in 1901. Since the amendment of that article of the Code, it has always been held to be an offense to play cards in the private room of a boarder at a hotel or boarding house. In this case it was not contended that appellant was a married man, and his family resided in the room. All of the record demonstrates that no family occupied the room. The evidence of the absent witness was therefore material to no issue in the case, and the facts it was alleged could be proven by him were not contested, and were proven by Mr. Poland and other witnesses, and if true would be no defense.

The judgment is affirmed.

GARCIA v. STATE. (No. 3778.)

all those Mexicans except one were bachelors; that one was a married man, but his wife was in Mexico; that these Mexicans did their own cooking in the car occupied by them and ate their meals therein and also slept therein; that none of them ate or slept or had their meals prepared in the cars occupied by him and his family.

We had occasion, in the recent cases of Stallings v. State, 170 S. W. 159, and Sloan v. State, 170 S. W. 156, to discuss the statute and what in contemplation of our present law was a private residence occupied by a family in which card playing could be indulged without violating the law. We also cited and discussed many cases decided by this court. Under the statute as it now is and said decisions, we think that the car where appellant and his associates were gambling was not a "private residence" occupied by a family, nor was it the private residence of the section foreman and his family. also, Fondren v. State, 179 S. W. 1170, this day decided. We think the case of Hipp v. State, cited by appellant, 45 Tex. Cr. R. 200,

See,

1915.)

GAMING 72 - CRIMINAL OFFENSES - "PRIVATE RESIDENCE."

A railroad box car set flat on the ground is not a "private residence" within the statute punishing gaming, where the car was only occupied by men who did their own cooking in the car and ate their meals therein and slept therein.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. 72.

For other definitions, see Words and Phrases, First and Second Series, Private Residence.]

Appeal from Lee County Court; John H. Tate, Judge.

Miguel Garcia was convicted of gaming, and he appeals. Affirmed.

Wm. O. Bowers, of Giddings, for appellant. P. J. Alexander, Co. Atty., of Giddings, and C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of gaming, and the lowest fine imposed.

The evidence, without question, is amply sufficient to sustain the conviction. Appellant contends that the evidence shows that where the gaming occurred was a private residence occupied by a family, and hence the conviction cannot be sustained. We think his contention is untenable. On this issue the evidence shows that appellant and several other Mexicans were caught gambling with cards in a railroad box car without wheels and set flat on the ground. The section boss testified that he and his family occupied two such cars, where they ate, slept, and lived; that where these Mexicans, including appellant, were caught gambling, was in another box car 250 feet distant from the cars occupied by him and his family; that

The judgment is affirmed.

COLEMAN v. STATE. (No. 3743.) (Court of Criminal Appeals of Texas. Oct. 27, 1915. State's Rehearing Denied Nov. 24, 1915.)

1. CRIMINAL LAW 595- CONTINUANCE ABANDONMENT AFTER SEDUCTION AND MARRIAGE-EVIDENCE-MATERIALITY,

In a prosecution for abandonment after seduction and marriage, the testimony of a witness, on account of whose absence a continuance that before the alleged seduction he saw proswas sought, and who if present would testify ecutrix and a person other than defendant in the act of sexual intercourse was material on the issue of the virtue and chastity of prosecutrix, especially where there was evidence of other improper conduct by prosecutrix.

[Ed. Note.-For Note. For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. 595.]

2. CRIMINAL LAW 598-DENIAL OF CONTINUANCE-DILIGENCE.

The denial, for lack of diligence, of a continuance in a criminal case because of the absence of a witness was erroneous, where it appeared that once before the witness had failed to attend court, and an attachment had been issued, and he had been placed under bond, after which he attended court regularly, and that when he failed to appear on the first day of the present term, defendant had other process issued to him, and it did not appear that, though the witness had left the state, defendant knew, or had reason to believe, that he had gone. Law, Cent. Dig. §§ 1335-1341; Dec. Dig. [Ed. Note. For other cases, see Criminal 598.]

3. HUSBAND AND WIFE 313 ABANDONMENT AFTER SEDUCTION AND MARRIAGE— EVIDENCE.

after seduction and marriage, the evidence showWhere, in a prosecution for abandonment ed that both prosecutrix and defendant had dark hair and were of dark complexion, that

prosecutrix's baby and uncle both had red hair and were of ruddy complexion, and that the uncle had for several years prior to the alleged seduction made his home with the father of prosecutrix, it was error to exclude the testimony of a witness that on a certain occasion he saw a woman, whom he believed from facts stated to be prosecutrix, sitting in the uncle's lap.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1110; Dec. Dig. 313.] 4. HUSBAND AND WIFE 302 - ABANDON

MENT AFTER SEDUCTION AND MARRIAGE-OF

FENSE.

It is not essential to the right to prosecute for abandonment after seduction and marriage that the marriage shall have taken place after indictment, but is sufficient that a complaint charging seduction shall have been filed, a warrant issued, and defendant arrested. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1100; Dec. Dig. 302.) 5. HUSBAND AND WIFE 313 ABANDONAFTER SEDUCTION AND MARRIAGEEVIDENCE.

In a prosecution for abandonment after seduction and marriage, defendant's evidence that he married prosecutrix under duress, and not voluntarily, and that he immediately brought suit to annul the marriage, alleging duress as grounds for annulment, was admissible to rebut the presumption arising from sible to rebut the presumption arising from the marriage that he was guilty of seduction.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. 313.] 6. HUSBAND AND WIFE 313 - ABANDONAFTER SEDUCTION AND MARRIAGE EVIDENCE-DIVORCE DECREE. In a prosecution for abandonment after seduction and marriage, a decree, divorcing defendant from prosecutrix, not being binding on the state, was not admissible in evidence. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. 313.] Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Bascom Coleman was convicted of abandonment after seduction and marriage, and appeals. Reversed and remanded.

J. S. Crumpton, of New Boston, for appellant. Hugh Carney, Dist. Atty., of Atlanta, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of abandonment after seduction and marriage and his punishment assessed at 6 years' confinement in the state penitentiary.

The testimony of appellant would show that he admitted having sexual intercourse with the young lady on a number of different occasions, but he most emphatically denies it was under promise of marriage, or that he was ever engaged to marry her. This is the second appeal in this case, the opinion on the former appeal being reported in 71 Tex. Cr. R. 20, 158 S. W. 1137. As the opinion in that case states the evidence rather fully, we deem it necessary to state only that portion of the testimony rendered necessary in passing on the various bills of exception.

[1] The first bill relates to the court overruling his second application for a continu

ance. This continuance was sought on account of the absence of W. S. Strain. He states the witness would swear if present that:

"In July, 1911, while on the road leading from Oak Grove to the house of prosecutrix, he observed prosecutrix and one whom he took to be P'ut Bodwell in the act of sexual intercourse."

This is prior to the time that prosecutrix says appellant led her astray under a promise of marriage. The materiality of this testimony is made more apparent by other testimony in the record.

Emmett Phillips testified he went with the prosecutrix, prior to the date of the alleged seduction, to church and other places; that she permitted him to place his arms around her, hug, and kiss her. Wesley Hazlewood testified that prosecutrix had willingly permitted him to kiss her on divers and sundry occasions. J. R. Morrison testified he had occasion to go to the home of prosecutrix to see her father, Mr. Burton; that no one else was at home except prosecutrix, and she was dressed in man's clothes, and pulled a razor out of her pocket; that he asked her if she was fixing to shave, and she merely laughed; that on another occasion he was driving by the home of prosecutrix, and he saw her dressed in men's clothes sitting astride of the water shelf on the gallery, in about 15 steps of the public road, and in plain view of the road. Morrison says his daughters were with him on this latter occasion, and one of them remarked, "I will swear to God, Hattie," when Hattie, prosecutrix, replied, "I am not ashamed;" that he saw her dressed in men's clothes on other occasions. This all occurred prior to the alleged seduction, and one of the contentions of appellant is that the prosecutrix was not

a chaste and virtuous woman at the time of and prior to the date on which he was charged with this offense. At this date Miss Hattie was 19 or 20 years of age. If he could have followed this testimony with the testimony of the witness Strain, it is readily seen how material it would have been on the issue of the young lady's virtue and chastity.

[2] The court overruled the application on account of lack of diligence. It appears from the record that once before the witness had failed to attend court, and an attachment was issued and he was placed under bond and, after being placed under bond, had attended court regularly, and was present at the term of court immediately preceding the one at which the trial was had. On the first day of this term of court, the witness failing to appear, appellant at once had other process issued for him to Bowie county. In the contest to the motion, it is shown that since the last term of court, the witness Strain had gone to Oklahoma. If appellant knew, or was shown to have been made aware, of any fact that would put him upon inquiry whereby he could have ascertained that the