Another bill recites as follows: "Gentlemen, you are representing the citizenship of Tarrant county, you are paying taxes to pay for your services as jurors, and you are paying taxes, helping to pay my salary as as- ord and the argument as shown, we are not sistant county attorney; and if you turn this willing that this judgment should be affirmdefendant loose you just as well have throwned, in the face of the argument indulged. your money in the fire."

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

ner tubes, and awarded two years in the pen- has been discussed and decided in several itentiary. cases, and the reasons given for such deciThe state's case was made by the testimo- sion, it is deemed unnecessary to go into an ny of two accomplices. The defendant relied extended discussion of the subject. See upon an alibi. It may be very seriously It may be very seriously Chester v. State, 23 Tex. App. 577, 5 S. W. questioned whether or not the accomplices 125; Durham v. State, 45 Tex. Cr. R. 476, 76 have been corroborated in such manner as the law requires. It is not the purpose, however, of this opinion to pass upon the sufficiency of the evidence, as the state may present the case in a different attitude before another jury.

[1] A bill of exceptions recites that while the state's witness Ruby Gibson was testifying she was asked by the state as follows: "I will ask you if, while he (meaning Ed Carroll) was there, or at any time during that day, did he receive a telegram; do you remember about a telegram? A. He did not receive any. Q. Was any telegram received there that day? A. No, sir; not that day. Q. Was there at any time? A. The next day, on Tuesday, there was. Q. Do you know who that telegram was from? A. From Arthur Franklin. Q. Do you know whether any one answered that telegram or not? A. Mrs. Carroll answered it."

Quite a number of exceptions were reserved. The following bill may be considered in the same connection. It recites that the state was permitted to introduce and read to the jury a telegram identified by the witness Hancock, manager of the Western Union Telegraph Company, at its local office in Hillsboro, Tex., who testified that the same was a copy of a telegram received at the Western Union Telegraph Company's office from Ft. Worth, Tex., and shows to have been filed at 10 o'clock a. m., August 14th, at the Union Depot, and was received at Hillsboro on the same day at 10:20 a. m., and that it was sent from or signed by A. Franklin and directed to Ed Carroll. Said telegram was in words and figures as follows: Without repeating all of it verbatim, it was dated the 14th of August at Ft. Worth and directed to Ed Carroll at Hillsboro, Tex. The telegram is as follows:

"If you have left let me know, if not let me know where you stay. Ans. Care of T. P. Station. A. Franklin. 10:20 a. m."

S. W. 563; Thompson v. State, 42 Tex. Cr. R. 140, 57 S. W. 805; Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 465.

[2, 3] There is also a bill of exceptions reserved to the argument of the assistant county attorney, commenting upon the failure of the wife of appellant to testify before the jury as to the whereabouts of Ed. Carroll at the time of the reception of the telegram above mentioned. The court withdrew this argument from the jury, or rather instructed them to disregard it. This is not discussed because upon another trial the telegram will not be admitted. Of course, the county attorney will confine himself within the rule of discussion as to the facts admitted. Just how far the prosecution may comment upon the failure of the wife to testify about facts while on the witness stand has been the subject of many decisions and fairly well understood, but none of the cases go far enough to hold that the failure of the wife to testify with reference to illegitimate testimony would be the subject of comment.

The charge on alibi is not correct. Upon another trial a proper charge will be given.

For the reasons indicated the judgment will be reversed, and the cause remanded.

(83 Tex. Cr. R. 371) SHACKELFORD v. STATE. (No. 4942.) (Court of Criminal Appeals of Texas. May 8, 1918.)

1. BURGLARY-2-ELEMENTS-SHOOTING INTO HOUSE.

Under Vernon's Ann. Pen. Code 1916, art.. 1303, defining burglary, and article 1307, defining entry, an indictment charging that defendant "did then and there unlawfully commit the offense of burglary by then and there discharging a firearm, to wit, a gun, into the in-house occupied and controlled by L., with the intent then and there to injure the said L., the was insufficient in that it failed to allege that said L., then and there being in said house," defendant broke or entered the house with a view of committing a felony. 2. BURGLARY 28(1)

FIREARM-VARIANCE.

BY DISCHARGING

Various objections were urged to the troduction of this telegram. The two bills may be considered together. In effect they show that the telegram was sent by Franklin to appellant; that appellant did not receive the telegram. It is also discoverable from the record that the telegram was sent after the supposed alleged theft, which seems to have occurred on the 10th of August. This telegram was not introducible. Appellant is not connected with it in any way; is not shown to have authorized it, or to have received it. It is a telegram from one of the accomplice witnesses to appellant occurring some days after the alleged theft Appeal from District Court, Fayette and disposition of the property. The reason County; M. C. Jeffrey, Judge. why this telegram was not introducible George Shackelford was convicted of bur seems to be rather obvious. As the matter glary, and appeals. Reversed and remanded,

To constitute offense under indictment charging burglary under Vernon's Ann. Pen. Code 1916, art. 1307, by discharging a firearm into a house with intent to injure S., "then and there being in said house," it must be shown that S. was in the house when the shot was fired.

Prendergast, J., dissenting.

John T. Duncan, of La Grange, for appel- | willfully, in the daytime, by force and breaklant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. [1] Omitting formal parts, the indictment charged as follows:

"Did then and there unlawfully commit the offense of burglary by then and there discharging a firearm, to wit, a gun, into the house occupied and controlled by Lizzie Shackelford, with the intent then and there to injure the said Lizzie Shackelford, the said Lizzie Shackelford then and there being in said house, against the peace and dignity of the state."

ing, committed the offense of burglary, by then and there discharging firearms, to wit, a gun, into the dwelling house of Charles Schmidt, with the intent to injure the said Charles Schmidt, who was then and there in said house, etc. A serious mistake, to the mind of the writer, in the majority opinion in the Railey Case, is that that opinion transfers the definition of entry into the definition of burglary, and makes it the criterion of intent. The Legislature, it occurs to the writer, did not so intend, and did not so enact. The entry and intent are different elements of the offense. Article 1307, Branch's Ann. P. C. p. 1277, defines and relates only to what it takes to constitute "entry." It is there provided that the entry is not confined to the entrance of the whole body; it may consist of the entry of any part for the purpose of committing a felony; or it may be constituted by the discharge of firearms or other deadly missile into the house, with intent to injure any person therein; or it may be constituted by the introduction of any in

Motion was made to quash this indictment. It will be noticed that there is no direct allegation that appellant broke or entered the house with a view of committing any offense. The statute (article 1303, Vernon's Crim. Stats.) defining the offense of burglary says that this offense is constituted by entering a house by force, threats, or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft. The Code (article 1304) also thus defines bur-strument for the purpose of taking from the glary:

"He is also guilty of burglary who, with intent to commit a felony or theft by breaking, enters a house in the daytime."

house any personal property, although no part of the body of the offender should be

introduced.

It will be noticed that the Legislature was

cept that of entry. Illustrative, the indictment would not be held valid if it simply charged that he burglariously entered the house by the entrance of any part of his body. It would have to go further and allege a breaking and that it was done for the purpose of committing a felony or the crime of theft. So with the discharge of firearms with intent to injure. The Legislature was simply defining the term "entry" to make such unlawful when the firing was done to injure. It was intended to prevent a charge of burglary, and not to include a burglary, unless the shooting by firearms into the house was intended to injure. This was but a means of entry. It was not a burglary. If the shooting of firearms into a house with

So of burglary of a private residence. This must be entered by force, threats, or simply defining what it took to constitute an fraud, at night, or in any manner by enter-entry into the house as a part of the definiing a private residence at any time, either tion of burglary. It was not referring to day or night, and remaining concealed there-breaking, or to the definition of burglary, exin until night, with the intent, in either case, of committing a felony, or the crime of theft. However a burglary may be committed, it must be done in this case by breaking, and the entry must be accomplished for the purpose of committing a felony. If these matters are not charged in the indictment, the offense of burglary is not averred. The manner of entry is one thing, and the intent to commit a felony or the crime of theft is a different proposition, but the two must concur in order to constitute the crime of burglary. This has been the rule laid down in the decisions, unless it be the Railey Case, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; but an inspection of that indictment as found in the original record in that case will bear the construction that burglary must be prop-intent to injure somebody was consummated, erly charged as to the breaking. That case diverged from the decisions theretofore ren- unlawful entry. It did not thereby intend dered, laying down the rule that the intent need not necessarily be with the intent to commit a felony or theft; that, if the breaking was intended to injure by shooting into a house, this would constitute burglary. The writer dissented in that case, and still is of the opinion that the majority of the court in so holding was not in consonance with the legislative will as shown by statutory enactments. In the Railey Case, supra, the charging part of the indictment was that appellant unlawfully, fraudulently, burglariously, and

the Legislature enacted that this should be

to relieve the pleader of properly pleading the charge of burglary of which entry was but a part of the definition of the offense. The indictment would have to go further and allege the breaking and prove such entry was done for the purpose of committing a felony. This has been understood to be the law, unless it be changed by virtue of the majority decision in the Railey Case, supra. So far as the authorities that have been called to the attention of the writer, there are but two cases where a proper allegation

was not made with reference to the intent in the breaking, the majority opinion in the Railey Case, supra, and Hammons v. State, 29 Tex. App. 445, 16 S. W. 99. The Hammons' Case was reversed under the unbroken line of authorities, as the writer understands, and the Railey Case, in order to sustain the majority opinión, overruled the Hammons' Case. The writer thinks that opinion clearly error.

The indictment in the instant case does not undertake to allege a burglarious entry except by conclusion generally, stating that he shot into the house with intent to injure. The term "burglariously," as we understand in this indictment, is just a general conclusion, and does not undertake to give any definition of burglary. There must be a burglary charged, a constituent element of which is entry; then there must, in addition, be the purpose and intent of committing a felony, or the crime of theft. From no viewpoint can this indictment, in the mind of the writer, be upheld.

just immediately on the inside of the house.
Lizzie Shackelford was not then in the house
into which this shot was fired. She was go-
ing in that direction. Her daughter testi-
fied she was outside of the house. Lizzie
Shackelford herself testified that she was
just about to reach the entrance of the house,
but was not on the inside. Appellant insists
this view of the case should have been sub-
mitted, and requested instructions, as well
as reserved exceptions to the court's charge
in this respect. We are of opinion that ap-
pellant is correct in this contention. In or-
der to have constituted this shooting at her
under the terms of the indictment, he would
have had to fire into the house for the pur-
Under
pose of injuring Lizzie Shackelford.
the state's case it was a serious question
whether he shot at her to injure her at all,
as the shot went way above her, and he is
shown to have been a hunter and a good
shot. But in any event, in order to consti-
tute this offense under the indictment, he
would have had to shoot in the house for the

If he was

purpose of injuring Lizzie Shackelford, and
it was necessary that she be in the house at
the time that he fired the shot.
shooting at her on the outside, and the shot
entered the house, it would not constitute
the offense charged in the indictment. The
state's case proceeded upon the theory, un-
der the evidence, that he was shooting at
her as she was going towards the house and
could not constitute a shooting in the house
for the purpose of injuring her.
words, to constitute this offense as charged
the shot would have had to be fired into the
house for the purpose of injuring her, she
being in the house. This offense is not con-
stituted by shooting at, but missing, her, and
striking the house. Under this view of the
case we are of opinion that the court should
tions to the jury to the effect that, unless
have submitted the special requested instruc-
the shooting in the house was for the pur-

the bullet missed and struck the house. This

In other

There are other questions in the case. The court instructed the jury that if appellant did discharge firearms, to wit, a gun, into the house occupied and controlled by Lizzie Shackelford, with the intent then and there, on the part of the defendant, to injure the said Lizzie Shackelford, and that the said Lizzie Shackelford was then and there in said house, they will find him guilty, and if they did not so believe from the evidence, beyond a reasonable doubt, they would acquit. He also charged the jury, if they believed from all the evidence that defendant's gun was accidentally discharged, and that after such accidental discharge of the gun that the defendant did not shoot into the house occupied and controlled by Lizzie Shackelford with the intent then and there to injure her, they should acquit. Various exceptions were urged to the court's charge, and special requested instructions refused. These are all properly presented. [2] The evidence shows that Lizzie Shack-pose of injuring her, and that at that time elford was in a tent, and appellant was at her residence; that he had called to see his child, Lizzie Shackelford and defendant haying been divorced. By the terms of the divorce he was entitled to see the child and be at the place where the alleged shooting occurred. When the first shot was fired, which appellant says was accidental, and gives various reasons why it was so and facts which seem not to have been controverted, Lizzie Shackelford left the tent in the direction of her residence, which was five or six steps away, and appellant fired another shot. This shot struck right at the edge of the roof, going through the plank and entering the rafter

she was in the house, they would not find him guilty, and if he was shooting at her and incidentally struck the house, this would not constitute an offense under the allegations in the indictment.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J. I am thoroughly convinced that the case of Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576, was correctly decided, and that it is the law. I do not concur in the criticism of that opinion by the opinion herein. I adhere to the decision in said Railey Case.

In an action to cancel certain conveyances forming part of an exchange of lands, where both parties left their deeds with a third party to have revenue stamps attached, such action held to constitute an actual delivery of the deeds to the respective parties entitled to them. 3. ESCROWS 8(2)-DEEDS-REVOCATION. An escrow agreement cannot be revoked by one of the parties.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

G. Startz and others, consolidated with an Action by H. Kanner and wife against A. action by A. G. Startz against Kanner and others. From an adverse judgment, plaintiffs H. Kanner and wife appeal. Affirmed.

R. H. Ward, J. H. Bickett, Jr., and S. C. Eldridge, all of San Antonio, for appellants. Guinn & McNeill, of San Antonio, for appellees.

MOURSUND, J. H. Kanner and wife, Rebecca Kanner, sued A. G. Startz, J. C. Yantis and wife, Susie Yantis, L. Jones, and Leonard Brown, on November 16, 1915, alleging that on September 8, 1915, plaintiff H. Kanner entered into a written agreement with A. G. Startz and L. Jones, whereby Startz was to sell Kanner certain cattle, personal property, and lots, and Kanner was to convey to Startz certain real estate, and Jones was to receive a conveyance from Startz of certain real es5. ESCROWS 1 - WHAT CONSTITUTES-DE- tate, as his commission for negotiating the LIVERY FOR SPECIAL PURPOSE.

4. DEEDS 48-EFFECT-FAILURE TO AFFIX REVENUE STAMPS.

A deed otherwise complete passes title, although revenue stamps are not affixed thereto.

Delivery of a deed to a third party for the purpose of having revenue stamps affixed does not constitute a placing of such deed in escrow. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Escrow.] 6. DEEDS 58(1)—DELIVERY-DELIVERY TO THIRD PARTY.

Where conveyances executed pursuant to an exchange of lands were placed in the hands of a third party to have revenue stamps affixed, after which they were to be delivered to the parties entitled to them, that one of the parties upon the holder's refusal to make delivery took possession of his deeds by force, did not impair their validity; delivery of the deeds having been complete when placed in the hands of the third person.

trade between Startz and Kanner, and between Kanner and Yantis; that a verbal agreement was made to the effect that the sales and conveyances heretofore mentioned were conditioned on the purchase by Yantis of the property Kanner was to receive from Startz; that on the same day Kanner made an agreement with defendant Yantis, acting through his agent, L. Jones, wherein Kanner was to convey to Yantis the lots and cattle to be received from Startz for $19,000, payable by conveyance of certain real estate and the execution of a note for the balance, secured by lien on the real estate to be conveyed by Kanner. The terms of the various trades were complicated, and need not be set out. Plaintiffs alleged that it was agreed that all abstracts should be brought down to date, and all papers and abstracts deposited with Leonard Brown, an attorney at law, who should draw up the instruments necessary to carry out the contracts; that about September 14, 1915, Kanner, Startz, and Jones went to Brown's office for the purpose of preparing the necessary instruments, but abandoned said written agreements and entered 1053(7)-REVIEW-into verbal agreements with reference to the Where a contract is introduced in evidence sale and trade between said parties, and to support a defendant's cross-action, error, if any, in the introduction of such evidence, is rendered harmless, where the cross-action was dismissed.

7. APPEAL AND ERROR 742(1) ASSIGNMENTS OF ERROR-FORM.

An assignment of error not submitted as a proposition, so that the reasons relied on to show that the judgment is erroneous are left to surmise, will not be considered.

8. APPEAL AND ERROR 1054(3) ASSIGN
MENTS OF ERROR-ADMISSION OF EVIDENCE.
On appeal from a judgment, an assignment
of error as to the admission in evidence of a
contract because of its uncertainty will not be
sustained, where it appears that the judgment
did not rest upon such contract.
9. APPEAL AND ERROR

CURE OF ERROR.

10. APPEAL AND ERROR 1042(1)-REVIEW -HARMLESS ERROR.

In a suit to cancel conveyances of real estate given in the consummation of a land deal, wherein plaintiffs alleged that one of the deeds of trust partly covered their homestead, but failed to show boundaries of their homestead, a judgment dismissing the issue of homestead, and sustaining the conveyance, did not harm plaintiffs, where they were given another opportunity to make proof of their homestead in any subsequent proceeding to foreclose the trust deed.

agreed that the trade between Startz and Kanner, and between Kanner and Yantis, were to be conditioned upon the successful consummation of both trades. Plaintiffs then alleged the terms of the verbal contract between Startz and Kanner, and between Kanner and Yantis; that he executed various instruments for the purpose of carrying out his part of the contracts, and that all instruments were executed except a deed by him to Startz and by Startz to L. Jones of certain real estate Jones was to receive as commission; that it was agreed that the instruments so executed were to be held by said Leonard

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