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made a motion to set aside the dismissal and reinstate the case, clearly showing by the affidavit of two deputy sheriffs that he had voluntarily returned and surrendered to the sheriff and was then in jail. The report of the case does not state the number of days elapsing between his escape and return, but says that the facts are strikingly similar to those in the Young Case. Hence We think it clear that he returned and Surrendered Within ten days from his escape. In the opinion written by Judge White the court quotes Said act of 1876 and says: “It follows that a party who has appealed in a felony case, and who effects his escape during the pendency of his appeal, does so at his peril. He by his own act deprives this court of its jurisdiction of his case; and, when that fact has been made to appear, and his case has been dismissed, this court has no further power or control over it” —and OVerruled the motion to reinstate. Soon after these decisions the Legislature by an act of February 21, 1879, in adopting the Codes as reported by the revisers, enacted articles 912 and 913 of the C. C. P., which are as follows: “Art. 912. When Defendant Escapes, Pending an Appeal.-In case the defendant, pending an appeal in a felony case, shall make his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case; and, upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General, or attorney representing the state, dismiss the appeal; but the order dismissing the appeal shall be set aside, if it shall be made to appear that the accused had voluntarily returned to the custody of the officer from whom he escaped, within ten days. “Art. 913. Sheriff shall Report Escape, etc.— When any such escape of a prisoner occurs, the , sheriff who had him in custody shall immediately report the fact, under oath, to the district or county attorney of the county in which the conviction was had, who shall forthwith forward such report to the Attorney General at the court to which the transcript was sent; and such report shall be sufficient evidence of the fact of such escape to authorize the dismissal of the appeal.”

Then for the first time this court was given power to reinstate a dismissed case because of escape, Solely by Showing Voluntary return within ten days.

The first case decided by this court under Said articles Was Lunsford V. State, 10 Tex. App. 118. Pending appeal therein appellant escaped, and was recaptured the same day. The ASSistant Attorney General made a motion to dismiss the appeal because of escape. In the Opinion therein this court quoted article 894, C. C. P., which gives every convicted person the right to appeal “under the rules hereinafter prescribed,” and also stated that said article 912 was one of these rules, and through Judge Hurt, Who Wrote the Opinion, held:

“This is the first case arising under the Code of Criminal Procedure, as amended or changed, calling for a construction. We hold that, under this rule prescribing the defendant's right to

appeal, the jurisdiction of the Court of Appeals, although, having once attached, was lost

court ceased to attach upon the escape of the appellant. And in order for it to re-attach, the appellant must voluntarily return into custody within ten days. The state would not be required to wait the expiration of the ten days before making an effort to capture the prisoner; the presumption being that the prisoner, having escaped, would not voluntarily return into custody. Holding that the escape, ipso facto, ousted this court of the jurisdiction of the appeal, and that nothing save a Voluntary return to custody could reinvest the court with jurisdiction, we conclude that the motion of the Assistant Attorney General is well taken”

—and dismissed the case. The law as thus held has been adhered to ever since in a great number of cases, Some of them collated in 2 Vernon's Crim. Statutes, p. 875; some Of these and others also cited in 1 Branch's An. P. C. § 591. The law as thus enacted and held by this court has been adhered to down to this very day as shown by Presiding Judge Davidson's opinion in Gilbert v. State, 203 S. W. 892, handed down on May 1, 1918.

Said motion of the Assistant Attorney General to dismiss is supported by the affidavits of J. C. Terry, sheriff of Hale county, W. W. Jeffus, his deputy, and D. M. Thomas, a priVate Citizen. These affidavits Show: That the sheriff arrested appellant on June 3, 1917, On a charge Of SWindling. That his bond therein to await action by the grand jury was fixed by the examining court at $1,000. That appellant was unable to make that bond, and hence was placed and held in jail by the sheriff. That on June 8th appellant made his escape from jail. That as soon as the Sheriff learned it he and Said deputy and a posse Of Citizens began a search for him to capture him. The sheriff offered a reward of $25 for his capture. That upon breaking jail he left On foot." When captured by the sheriff of Oldham county on June 17th he had worked his way north about 120 miles. When captured he was in possession of a horse and saddle. Later he was indicted in Swisher county in two indictments for the theft of said horse and saddle which Were alleged to have been stolen after his escape and before his capture. That the sheriff of Hale county got appellant from the Sheriff of Oldham County SOOn after his capture and brought him back, and again placed him in the Hale county jail. That On August 11th the grand jury of Hale County returned two indictments against appellant, One for the burglary of the residence of W. E. Hunt and the other for the burglary of the residence of Basil Fruin, both offenses alleged to have been committed after his eSCape On June 8th and before his Said Capture by the sheriff of Oldham county. That on August 25th said grand jury returned an indictment against him. On Said original charge of SWindling. That On August 30th appellant was tried on said charge of burglary of Fruin’s residence, this case, and he was convicted and his punishment assessed as stated. The appeal bond Was fixed at placed in the sheriff’s custody and confined by him in the jail. The facts and circumstances of his eScape and capture, after his appeal herein, Was shown to be as follows: That on October 1st he made his escape from jail by breaking the lock and opening the doors with iron rods evidently placed in the jail from the outside by unknown persons. That he with other prisoners got out about 10:30 o'clock in the morning, while the jailer and Sheriff's force Were away. That immediately upon learning of the escape the sheriff offered a reward of $25 for the capture of each escaped priSoner. Thereupon a number of citizens joined the Officers in the chase for the escaped prisoners. That about 5 O’clock that eVening appellant and another prisoner, Tom Duke, who had been convicted for arson and his punishment assessed at five years, and Who On this Occasion made a final geta Way, were found out in a cornfield about a mile and a half from the city limits. When discovered they were hiding under some weeds With their shoes off. They jumped up and ran. Appellant stopped long enough to slip on his shoes without fastening them while Duke ran Without his. They ran in different directions. The persons discovering appellant chased him for several hundred yards. He was gaining on them and about to make his getaway, when, While looking back at his pursuers, he ran into another group of men, who captured and brought him back. That appellant in the presence of said affiants and other citizens of the city said that he and Duke had planned to stay in the corn. field hid until night and then make a final effort to escape. That he would have gotten away that time if he had not stopped long enough to put on his shoes when first discovered, and had run without them, as Tom Duke did, who was not captured. That appellant did not voluntarily return, but was captured while trying to get away as Stated. To his resistance of the State’s motion he has attached affidavits of himself, his attorney, and some others. In neither of them is the fact of his escapes, as substantially stated by the sheriff, his deputy, and Thomas, denied or disputed. Nor are the facts Of the various indictments stated by the Sheriff against him denied or disputed. Nor what he stated to those parties and other citizens at the time of his flight, when discovered hidden, and his statement of why he did not get away at the time. But he claims in his affidavit that his breaking jail and escaping On October 1st was “for the purpose of going Out to his uncle's for the purpose of seeing about the appeal bond, or why the bond had not been made, with the intention of returning to said jail.” These affidavits are about Other collateral matters also. The sheriff and his deputy by another affldavit stated: That at the time and before

appellant's said escape on October 1st he (appellant) well knew that his uncle and brother could not make bond for him. That at the time he was held under four separate an distinct cases. The bond in each of three of them was $500 and in this case $1,500 aggregating $3,000. That when he was first placed in jail on said charge of swindling and his bond fixed at $1,000 his uncle and brother at that time tried to make that bond for him, but could not. That neither of them were taxpayers, and appellant knew neither of them would be accepted On any bond. That during the time he was trying to make said $1,000 bond his father, who lived without the State, came dOWn and Spent a number of days trying to arrange to make it, but could not. That his uncle and brother lived in Hale county and had often been to see appellant while he was in jail, and appellant well knew that he could see them at any time he wanted to. That the sheriff or some of his deputies would have Sent for them at any time he made such request. That neither his brother nor uncle owned land and had nothing Subject to execution, and appellant well knew this as the matter had been talked in his presence when they were trying to make his said $1,000 bond, and he Well knew that before his Said eScape they had made all possible efforts to Secure a bond for him, but had failed. Upon the thorough COnsideration of all the affidavits it is clearly shown that appellant escaped on October 1st, while his case was pending on appeal in this court; that he did not Voluntarily return or offer to do SO; that his purpose in escaping Was not to see his uncle about making his appeal bond; and that he had no intention of Voluntarily returning, but that, on the contrary, his intention was to make his getaway and not return to jail. So that under the law and facts the state's motion to dismiss is well taken. Appellant cites and relies only upon Leonard V. State, 53 Tex. Cr. R. 187, 109 S. W. 149. That case is directly in conflict with the other well-considered cases by this court, and is directly in conflict with the plain provisions of the statute. Even that opinion states that, “We have had some doubt as to Whether We ought to dismiss the appeal.” However that may be, that case is inapplicable to this, for therein it was shown, and Seems not to have been COntroVerted, that appellant escaped with no intention of going away, but solely and only for the purpose of getting out to make bond and with the intention of surrendering himself to the due process of law. In this case, While appellant made such a claim, the facts are directly against him and show the reverse of his contention. Therefore this COurt has no jurisdiction of his case, and it is dismissed.

(83 Tex. Cr. R. 442) GRACE v. STATE. (No. 5015.)

(Court of Criminal Appeals of Texas. May 22, 1918.)

1. LARCENY 6:27—RECEIVING STOLEN GooDS Q:4—THEFT OF HOGS–ASSISTANCE IN DISPOSAL. If defendant only assisted one who killed the hogs of another in taking the hogs home after they were dead, he was not guilty of theft of the hogs, or even of receiving live hogs.

2. RECEIVING STOLEN GOODS 3:23–KNOWLEDGE OF THEFT. Defendant was guilty of receiving dead hogs that had been stolen by another only if he knew the hogs were stolen when he assisted the other in taking them home after they had been shot.

3. CRIMINAL LAW 3:413(2) — EVIDENCE STATEMENT BY DEFENDANT. In a prosecution for hog theft, the whole of defendant's statement to an officer, who came with a search warrant to his house looking for the hogs, explanatory of defendant's possession; was admissible, the state having introduced part of it, and part of it should not have been excluded on the ground such part was self-serv1Ing. 4. LARCENY Q: 55–GUILT – SUFFICIENCY OF EVIDENCE. - In such prosecution, circumstantial evidence held insufficient to connect defendant with the original taking of the hogs by another, or to show that he committed the theft. Appeal from District Court, Polk County; J. Llewellyn, Judge. Tom Grace was convicted of hog theft, and he appeals. Reversed and remanded.

McKinnon & Campbell, of Livingston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted Of hog theft; his punishment being assessed at three years' confinement in the penitentiary.*

This is a case purely of circumstantial evidence. The State’s case is that appellant and De Loach were found in possession of two dead hogs at night, alleged to be the property Of Alabama White, Alabama White testified that she had nine “killing” hogs; that these hogs came up every evening and she fed and slopped them, as she also did in the morning; and that they ranged around a lake near where she lived during the day. On this particular evening only seven of the hogs returned; two of them did not. These are the hogs supposed to have been found in possession of appellant and De Loach that night. The evidence further shows that the hogs were shot. The defendant’s case is that he had nothing to do with the killing of the hogs, and was not present; that after they were killed De Loach came to him and asked him to go with him; that he did so, and when they reached the lake he ascertained the fact that De LOach Wanted him to help carry the two hogs home. These proved

to be the two missing hogs of Alabama White. These hogs were evidently killed some time during the evening and before the Seven hogs returned to the Alabama White residence. Appellant's evidence further ShoWS that he went at the request of De Loach to assist him; that he had nothing to do with the original capture; and that the hogs Were dead When he and De Loach went to where they were and had been dead for SOme time. The evidence further shows that De Loach was armed, something like 3 or 4 O'clock in the evening, with a single-barrel Shotgun; that he went in the direction of the lake, and Shortly thereafter, about 4 o'clock, tWO gunshotS Were heard about Where the hogs were found dead. It is further shown that appellant was working Durden's team on the Onalaska farm, plowing a pair of mules, and at Sunset he came from the field with the mules and put them up and went

home. De Loach was at his house upon his arrival. From there they went and got the hogs. The state did not undertake to con

nect appellant with the original taking otherwise than by his joint possession of the hogs after they were dead Several hours. [1-3] The court did not charge upon circumstantial evidence, nor did he instruct the jury with reference to appellant receiving dead hogs; in fact did not charge upon the issue of receiving stolen property. If appellant Was Only assisting De Loach in taking the hogs home after they were dead, he could not be guilty of theft of the hogs, or even of receiving live hogs. He Would only be guilty of receiving dead hogs, if he knew the hogs were stolen. When the officer went With a search warrant to appellant's house looking for the hogs he made a Statement to the Officer, some of which was excluded on the ground that it would be self-serving statements. This testimony, if it is offered upon another trial, should be admitted in reference to Statements made to the Officer about these hogs. The State having introduced part of it, he Was entitled to the Whole conversation with reference to it explanatory of his possession. [4] We are of opinion that the testimony is not sufficient to connect appellant with the taking Of the hogs. The state offered no testimony controverting his alibi at the time of the capture of the hogs, or to disprove the fact that he was working on the Onalaska farm at the time of the killing of the hogs by De Loach. There was no evidence of any conspiracy between them otherwise than has been Stated. We are of Opinion that as the record presents the case the evidence is not sufficient to connect him with the original taking, or show that he committed the theft. The judgment, therefore, will be reversed, and the cause remanded.

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

(83 Tex. Cr. R. 234). FAUBIAN v. STATE. (No. 4924.)

(Court of Criminal Appeals of Texas. April 10, 1918. On Motion for Rehearing, May 29, 1918.)

1. HOMICIDE Q->120—ASSAULT TO MURDERSELF-DEFENSE. In a prosecution for assault to murder, where prosecuting witness was doing no act which, manifested any intention of doing him harm, the issue of self-defense was not raised, though prosecuting witness had previously struck defendant with his fist, after which he retreated. 2. HOMICIDE Q->120 – SELF-IDEFENSE - PURSUIT-GUILT OF ASSAULT. Where prosecuting witness struck defendant on the head with his fist, but when defendant drew his pistol retreated, and was fired at by defendant after he had got some distance up the street, and after he had gotten into an automobile and started away, defendant was guilty of an assault. 3. IIoMICIDE 6:166(3)—EVIDENCE-MOTIVE. In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state had been able to prove that defendant had been named as corespondent in a divorce petition which the assaulted person , had filed against his wife, the fact would not have been admissible in the absence of circumstances bringing it to defendant’s knowledge. 4. CRIMINAL LAW 6:706, 11.70% (5) - CONDUCT OF PROSECUTING ATTORNEY-EXAMINATION OF ACCUSED–QUESTION TENDING TO PRE.JUDICE. . Where there was no evidence that defendant had maintained improper relations with the assaulted person's wife, and there was no evidence that defendant was named in the assaulted person's divorce proceedings against her, the state's question to defendant as to whether he had been named in the divorce petition as corespondent or the cause of separation by reason of his association with the assaulted person’s wife Was improper and prejudicial. 5. HOMICIDE 3:340(2) — APPEAL – PREJUDICIAL ERROR. The state's improper question to defendant as to his being named as corespondent in the assaulted person's divorce petition against his wife, and the instruction on self-defense, in the absence of evidence that defendant provoked the difficulty, were prejudicial error calling for new trial. On Motion for Rehearing. 6. CRIMINAL LAW 3:5730(3)—IMPROPER CONDUCT OF ATTORNEY—DUTY OF COURT. In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state was within its rights in asking defendant as a witness whether he had been named as corespondent in the assaulted person's divorce petition, the trial court should have corrected the injurious effect of such question by withdrawing it from the jury on request. Appeal from District Court, McLennan County; J. W. Taylor, Jr., Special Judge. Clyde Faubian Was convicted of aggravated assault, and he appeals. Reversed.

Jno. B. McNamara, CO. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Appellant was indicted for assault With intent to murder On One Garrett, convicted of aggravated assault, and his punishment fixed at a fine Of $400.

viewed from defendant's standpoint,

Appellant owed Garrett an account. Garrett had met him SOme tWO Weeks before the difficulty, and demanded payment. On the occasion of the difficulty appellant had started to his place of business with a hammer in his hand, and was invited by one of the witnesses to ride to toWn in his car. The Witness told appellant he was going to get gasoline at Garrett's...garage, stopped his car for that purpose, and asked appellant to get out so the tank which was under the seat might be filled. One of Garrett's employés was attend. ing to the gasoline, and Garrett, who was in the rear of the building, came out and began a ConVersation With appellant about the account, demanding payment in quite peremptory language, and, as state's witnesses described it, in a very earnest manner. Appellant said that he had no money to pay the aCCOunt, and, further, that the account was not right, and demanded of Garrett that he take his hands out of his pockets. Garrett Struck appellant a blow on the head With his fist and cut a gash about half an inch long and about one-eighth inch deep, which bled and which appellant says dazed him. About the time the blow was struck appellant drew his pistol, state's witnesses claiming he was drawing at the time he was struck. He made an effort to Shoot Garrett, Who dodged around the car, and appellant was warned by a Witness not to shoot Garrett, as he was unarmed. Garrett finally ran and was fired at by appellant twice, once after he had got Some distance up the street and again after he had gotten into an automobile and started a Way. The court charged the jury on assault to murder, aggravated assault, Self-defense, adequate cause, and provoking the difficulty. We do not think the issue of provoking the difficulty was raised by the evidence. There are Several assignments criticizing the charge of the court and the special charge given at the request Of the state. At the time the shots were fired Garrett Was not only retreating, but was doing so hurriedly, and had reached a point some distance from appellant at the time the first shot was fired, and had increased the distance and was fleeing from him in an automobile at the time the second shot was fired. [1] It is evident from all the testimony, including that of appellant, that at the time the shots were fired deceased was doing no act which, viewed from appellant's standpoint, manffested any intention of doing him harm, and in our opinion the issue of selfdefense Was not raised. Lynch v. State, 24 Tex. App. 350, 6 S. W. 190, 5 Am. St. Rep. 888; Hinton v. State, 24 Tex. App. 450; Bush v. State, 40 Tex. Cr. R. 543, 51 S. W. 238; Branch's Cr. Law, § 462. [2] It was apparent that appellant was guilty of an assault, the grade and amount of punishment to be determined by the jury.

G->For “ther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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[3,4] While appellant was testifying as a witness counsel for the state was permitted, over objection, to ask him if he had not been named in a divorce petition, Which the prosecuting witness, Garrett, had filed against his wife, as the corespondent or cause of said separation, by reason of his familiarities and associations with the prosecutor's Wife. The appellant answered this question in the negative. It appears from the prosecuting witness’ testimony that he had nothing against appellant; that he did not like him, and it Seems clear that at the time the difficulty began appellant's presence at the place was incidental to his riding to town with the Witness Mayfield; that the meeting was brought about by Garrett; and that his conduct was aggressive and his language insulting. There was no evidence that appelIant had maintained improper relations toward the Wife of Garrett, nor Was there any evidence that in the divorce proceedings appellant was named. It tended to put appelIant in a bad light before the jury and if the state had been able to prove the fact it would not, under the circumstances, have been admissible, in the absence of some circumstances bringing it to appellant's knowledge. Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1122; Daniels V. State, 71 Tex. Cr. R. 661, 160 S. W. 707. The action of the prosecuting attorney in asking the question was prejudiCial to the appellant, and the Court Was in error in permitting it, and not instructing the jury to disregard it. Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Hodges v. State, 73 Tex. Cr. R. 378, 166 S.W. 512; Wernon's C. C. P. p. 395, and cases cited.

[5] While the issue of Self-defense Was not in the case, the fact that the court, in the absence of evidence that appellant provoked the difficulty, instructed the jury on that Subject Was calculated to indicate to the jury that in the mind of the court there was evidence that appellant was in the "Wrong from the beginning. This, together with the improper question mentioned above, was prejudicial to the appellant, and may have been an element in enhancing the punishment aSSessed. Because of them. We believe the court should have granted a new trial, and his failure to do so Will require a reversal of the judgment of the lower court, which is ordered.

PRENDERGAST, J., absent.

On Motion for Rehearing.

MORROW, J. Responding to the very earnest and carefully prepared motion for rehearing filed by State's COunsel, We have reexamined the questions paSSed upon, but are unable to reach the conclusion that a proper disposition of the case was not made. The Suggestion by State's counsel that the facts present an issue of self-defense cannot be

Sustained. There is evidence that Garrett assaulted appellant, and evidence that his conduct was such as to justify the concluSion, from appellant's standpoint, that Garrett Was about to aSSault appellant at the time he drew his pistol. The shots were not fired by appellant then, and were not fired until after Garrett had manifestly abandoned any effort to continue the assault upon appellant, or to get into a position to renew it. As presented by the recOrd, that the shots were fired after Garrett had abandoned any assault that he had made We think is manifest. Bordeaux V. State, 58 Tex. Cr. R. 61, 124 S. W. 640.

The charge authorizing the jury to pass upon the issue of provoking the difficulty is Without Support in the facts.

[6] The suggestion that it was permissible for state's counsel to ask appellant if he had not been named by Garrett, the prosecuting witness, in a divorce petition as the cause of the separation between Garrett and his Wife on the issue of motive We think is not Sustained under the facts of the case. Whether appellant had been so named Was a fact of Which the State's Counsel manifestly had knowledge before he asked the question. When he asked appellant if he had not been so named appellant replied in the negative. This reply was accepted without controversy. It, therefore, appears from the record here that appellant had not been so named. The right of counSel to make inquiries to ascertain the truth is unquestioned, but his right to ask questions Suggesting the existence of facts which tend to reflect upon the accused, when in truth the facts do not exist, rests upon a quite different basis. Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679. Granting, however, that counsel for the state was well Within his rights in asking the question mentioned, it is clear that the trial court should have corrected, as far as possible, its injurious effect by withdrawing it from the jury on request. Instances of reversals because there was put before the jury suggestions as to the existence of damaging facts by questions are to be found in the cases of Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847, and Wyatt v. State, 58 Tex. Cr. R. 115, 124 S. W. 929, 137 Am. St. Rep. 926. Other cases on the subject will be found collated in 2 Vernon's Crim. Stats. p. 906, note 43.

The motion for rehearing is overruled.

(83 Tex. Cr. R. 451) BROWN v. STATE. (No. 5044.)

(Court of Criminal Appeals of Texas. May 22, 1918.)


The legal presumption is in favor of the

trial court's ruling as to admissibility of evi

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