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had violated a traffic ordinance on some pre- plugs. The state relied upon circumstanvious occasion.

tial evidence, a part of which consisted of The judgment is affirmed.

verbal statements made by the appellant. The

error complained of is predicated upon the On Motion for Rehearing.

proposition that these statements were made [7] Our attention is called to the fact that while appellant was under arrest, unwarned, this prosecution for a misdemeanor is begun and were such as the state was inhibited by an indictment returned to the district from using by the terms of article 810, Code court of Garza county. That court being Cr. Proc. without jurisdiction to try the cause, the

The deputy sheriff, having appellant under statute required that it should, by order of suspicion of committing the offense, went to court, be transferred to a court having juris- appellant's place of business and told him diction. Vernon's C. C. P. art. 483.

he wanted him to come to the sheriff's office. The record before us contains no order of Appellant went into a room for the purpose the district court transferring the case to the of changing his clothes. His wife also went county court, and, the county court being in the room, and the deputy sheriff followwithout power to receive an indictment from ed, requiring that appellant should have no the grand jury, there is a failure in the rec- conversation with his wife. On going to the ord to show facts necessary to disclose the sheriff's office with the officer, appellant was jurisdiction of the county court to try the interrogated by him with reference to the case. Richardson v. State, 57 Tex. Cr. R. property in question. He was dismissed at 285, 122 S. W. 560; Harris v. State, 57 Tex. noon with instructions from the officer to Cr. R. 84, 121 S. W. 1116; C. C. P. art. 485. return after lunch, which he did, remaining

The motion for rehearing is granted, the af- in company with the officer mentioned and firmance set aside, and the judgment is re- another for some time, after which he was versed and remanded.

directed to accompany them in an automobile to his place of business, which they desired to search, and which they did search in his presence; and during the search one of the

automobile tires upon the possession of which CLARK V. STATE. (No. 5228.) the prosecution is founded was found by

the officers through their own efforts in (Court of Criminal Appeals of Texas. Dec. 11, searching the premises. Appellant was then 1918.)

taken by them in the automobile to his room, 1. CRIMINAL LAW 406(3) ORAL STATE- which was searched, after which they took MENTS MADE WHILE "UNDER ARREST." him in the same manner to his place of busi

Verbal statements concerning stolen prop- ness, and after making further search took erty, made to arresting officer by defendant him before the grand jury, and immediately while he understood that he was under arrest, after he was released therefrom he was placbut before he was taken to jail, held to have ed by said officers in jail. He understood been made by defendant while "under arrest," that he was under arrest from the beginning. within Code Cr. Proc. 1911, art. 810.

The view taken by the state is that the 2. CRIMINAL LAW Fww519(3) – ORAL STATE appellant was not under arrest until he was MENTS MADE WHILE UNDER ARREST.

taken to jail. This is more strict than the Under Code Cr. Proc. 1911, art. 810, as to law contemplates. The rule stated in Patoral confession made by accused while in cus- rick's Case, 74 S. W. 551, is thus quoted : tody of an officer being inadmissible, it is unnecessary that arrest be made in formal words "If by the acts and conduct of an officer havif it clearly appears from the surrounding facts. ing the party in charge he is led to believe he Prendergast, J., dissenting.

is under arrest or is in his own mind conscious

of being under arrest, then the confessions, not Appeal from District Court, Wichita Coun- coming within any of the exceptions named or

implied in the statute, are not admissible.” ty; Wm. N. Bonner, Judge.

[2] It is not necessary that the arrest be H. A. Clark was convicted of the offense of concealing stolen property, and appeals. made in formal words; it may clearly appear

from the surrounding facts. Nolen v. State, Reversed and remanded.

8 Ter. App. 585; Nolen v. State, 9 Tex. App. Weeks & Weeks, of Wichita Falls, for ap- 425; Zimmer v. State, 64 Tex. Cr. R. 114, pellant.

141 S. W. 781; Jones v. State, 52 Tex, Cr. E. B. Hendricks, Asst. Atty. Gen., for the R. 207, 106 S. W. 126; Jones v. State, 44 State.

Tex. Cr. R. 408, 71 S. W. 962; Buckner v.

State, 52 Tex. Cr. R. 271, 106 S. W. 363; MORROW, J. Appellant was convicted of Calloway v. State, 55 Tex. Cr. R. 263, 116 the offense of concealing stolen property. S. W. 575; Fry v. State, 58 Tex. Cr. R. 169,

[1] The property involved was certain Mi- 124 S. W. 920; Oliver V. State (Tex, App.) chelin automobile casings and certain spark | 197 S. W. 185.

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

During the appellant's examination by the testimony of the officer having him under arrest officers in the sheriff's office he declared that to a verbal statement made by the accused he did not handle Mechelin tires, and during which the state seeks to use to prove his guilt.

"The correct rule, we think, is stated in Herthe search in his place of business, the officers having discovered a Mechelin tire with nan’s Case, 42 Tex. Cr. R. 464, 60 S. W. 766,

which is summarized in the syllabus as follows: the number cut off, and calling appellant's A confession or admission of an inculpatory attention thereto, appellant stated, "Yes,” fact by a defendant, where he is under arrest and was then asked if he had any more and unwarned, cannot be used as evidence Mechelin tires, to which he replied, "No." | against him. Any factor circumstance inHe also said that the tire first found was volved in a statement by defendant while in a “second.” To this one of the parties re- jail or under arrest, and when he has not been plied, the Mechelin people do not make "sec- cautioned, which may be used by the state as onds." Appellant declared that they did. He a criminative or inculpatory fact against him, was also asked where he got the tire, reply- sion, although the same may not be technically

comes within the statutory rule as to confesing that it was on a car he traded for. He a confession or admission. And defendant canalso said, in response to questions asked him not be impeached as to such statements, folabout other Mechelin tires found in his place lowing Bailey v. State, 40 Tex. Cr. R. 150 of bu

ess, that he bought them on a Ford. [49 S. W. 102].' He also said, in response to an inquiry by the "Other cases in point are the following: officers, that he did not know there were any Wright v. State, 36 Tex. Cr. R. 432, 37 S. W. spark plugs in his desk or trunk; that he | 732; Williams v. State, 10 Tex. App. 527; bad had to buy some because he did not Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. think he had any.

301; Brown v. State, 55 Tex. Cr. R. 581, 118 Appellant's defense on the trial was that 172; Wimberly v. State, 22 Tex. App. 510 [3 S.

S. W. 139; Adams v. State, 16 Tex. App. he had bought the spark plugs found in his w. 717); Rogers v. State, 44 Tex. Cr. R. 353 possession, and that he had bought the four [71 S. W. 18]; Binkley v. State, 51 Tex. Cr. R. Mechelin tires in his possession from a person 57, 100 S. W. 780; Nolen v. State, 9 Tex. App. who brought them to his place of business. 419." The state introduced proof of his statements

The judgment of the lower court is reversafter he was taken to the sheriff's office and

ed, and the cause remanded. while he was in company with the officers during the search of his room and place of

PRENDERGAST, J. I believe the opinbusiness, and then introduced evidence to ion I wrote in the Dover Case, 197 S. W. 196, show that the statements thus proved to have is correct, and I therefore respectfully disbeen made by appellant were false, and they,

sent. being contradictory of his defense urged upon the trial, were used against him by the state to prove his guilt.

A like state of facts was passed upon in WRIGHT v. STATE. (No. 5207.) the case of Dover v. State, 197 $. W. 196. The remarks made in the concurring opin (Court of Criminal Appeals of Texas. Dec. 11,

1918.) ion in that case express our views with reference to the admissibility of the statements 1. CRIMINAL LAW e92522 (3)—NEW TRIALused against appellant and made by him CONDUCT OF JURY. while he was under arrest and unwarned. That the jury, in their deliberations, referFrom that opinion the following quotation is red to the fact that defendant during the trial taken:

dozed off to sleep and nodded several times, does

not require a new trial, since the jury was not "In agreeing to the reversal of this cause, inhibited from talking of his manner and conwe deem it proper to state that in our judg. duct in passing upon the weight of his testiment the testimony given by the officers who

mony. had appellant under arrest that while under arrest, without warning, he made in their pres. 2. CRIMINAL LAW Ow1144(18)—APPEAL_NEW ence a verbal statement which was used on the TRIAL-PRESUMPTION IN FAVOR OF TRIAL trial against him, was not admissible. The COURT'S RULING. Code of Criminal Procedure (article 810) pro- Where the order overruling motion for new vides that the 'confession (of the accused) shall trial shows that the court heard evidence and not be used, if, at the time it was made, the thereon determined the motion should be overdefendant was in jail or other place of confine- ruled, the presumption in favor of the correctment, nor while he is in the custody of an of- ness of the court's ruling which is indulged on ficer, unless made in the voluntary statement appeal implies that the evidence was sufficient to of accused, taken before an examining court authorize the judgment rendered. in accordance with law, or be made in writing

INDETERMINATE and signed by him, which written statement 3. CRIMINAL LAW Cm1184 shall show that he has been warned by the

SENTENCE-MODIFICATIOX. person to whom it was made.' The purpose Where the trial court on conviction for murand effect of this statute is to prevent the der failed to apply the Indeterminate Sentence prosecution from using against the accused the Law, Vernon's Ann. Code Cr. Proc. 1916, art.

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

865a, the judgment entering the sentence will be ded several times, does not require a new reformed so that it will provide for confinement trial, and the jury was not inhibited from in the state penitentiary within the period fixed talking of his manner and conduct in passby law as the minimum and maximum penalty ing upon the weight to be given his testimofor the offense.

ny. Moreover, the order of the court overAppeal from District Court, Anderson ruling the motion for a new trial shows that

the court heard evidence and thereon deterCounty; John S. Prince, Judge.

mined that the motion should be overruled. Alfred Wright was convicted of murder, In this state of the record, the presumption and appeals. Judgment ordered reformed in favor of the correctness of the court's ruland affirmed.

ing, which is indulged on appeal, would imR. E. Seagler, of Palestine, for appellant. ply that on the hearing of the motion the erE. B. Hendricks, Asst. Atty. Gen., for the idence adduced was sufficient to authorize State.

the judgment rendered thereon.

[3] The sentence failed to apply the Inde

terminate Law (article 865a, Vernon's Code MORROW, J. Appellant was convicted of murder, and his punishment fixed at confine Cr. Proc. p. 855). The judgment of the lower

court entering the sentence will be reformed ment in the penitentiary for a period of ten

so that it will provide for the confinement of years.

appellant in the state penitentiary for a peAppellant and deceased, Criss Edwards, were young men, members of the same fam- riod of not less than five nor more than ten ily, stepbrothers. The difficulty arose over

years. See Cisneros y, State, 76 Tex. Cr. R.

313, 174 S. W. 608. the contention of deceased that appellant

The judgment of the lower court is ordered had broken a pair of clippers and that he should pay deceased for them. There is evi

reformed and affirmed. dence that in the course of the quarrel the deceased, who appears to have been the aggressor in bringing on the difficulty, took hold of a chair and threatened appellant, and also evidence that the deceased used insult

Ex parte MYER. (No. 5121.) ing remarks towards his stepmother, the mother of appellant. Deceased, on learning (Court of Criminal Appeals of Texas. Oct. 23, that appellant had gone in the house and

1918. On Motion for Rehearing, Nov. 27, gotten a gun, ran, and while he was running 1918. Dissenting Opinion on Rehearing, Dec. appellant fired one shot with a shotgun load- 18, 1918.) ed with buckshot; some of the shot taking effect in the back of deceased and in the 1. CONSTITUTIONAL LAW Ow14 CONSTRUCback of his neck, resulting in his death. Appellant claimed that he shot deceased be- The language selected by the framers of a cause he was frightened by his th ats an constitution, when its meaning is clear, controls conduct, also because of his insulting lan- the court in interpreting it. guage towards appellant's mother. Some of 2. Intoxicating LIQUORS 17 - PROHIBIthe witnesses who were present disclaimed TION-CONSTITUTIONALITY. hearing the remarks which appellant and Acts 35th Leg. (4th Called Sess.) c. 24, p. 37, others testified to, and there was an issue of prohibiting the sale, barter, or exchange of infact growing out of the evidence as to wheth-toxicating liquors throughout the state, violates er the remarks were in fact made.

Const. art. 16, § 20, relating to local option. Appellant complains of the fact that the 3. INTOXICATING LIQUORS Cw17 -- PROHIBI. court submitted to the jury the issue of mur- TION-POLICE POWER. der, claiming that the facts would support a In the absence of Const. art. 16, § 20, there conviction of no higher grade of offense than would be no restriction upon the power of the manslaughter. The jury was instructed up- Legislature to prohibit the sale of intoxicating on the law of manslaughter, and there was liquors throughout the state under the police evidence raising that issue, but not such to power. establish as a matter of law that adequate cause existed, nor that, as resulting there

On Motion for Rehearing. from, appellant's mind was rendered incapa- 4. INTOXICATING LIQUORS ww17—WAR 4ble of cool reflection. There was testimony

PROHIBITION POWER OF STATE LEGISLAcoming from the appellant himself, while tes

TURE-MILITARY NECESSITY. tifying as a witness, which would be suffi- The state Legislature cannot, on the ground cient to justify the jury in rejecting his de- of military necessity, pass a general prohibition fensive theory of manslaughter.

law, under Const, art. 16, § 28, the federal gor[1, 2] The reference of the jury in their de- ernment being able to take care of its army. liberations to the fact that the appellant, 5. CONSTITUTIONAL LAW Ow70(1)—Courts. during the trial, dozed off to sleep and nod- The courts have no power to legislate.

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TION,

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6. CONSTITUTIONAL LAW Om 48-STATUTES- Legislature mentioned, no effort was made PRESUMPTION.

to put absolute prohibition of the sale of inThe courts indulge a presumption in favor of toxicating liquors in effect in the state, or the validity of legislative acts, but the presump- any part of it, except by means of the local tion is not conclusive.

option law, which, with certain amendments, Prendergast, J., dissenting.

is still in force, unless annulled by the act

in question, and during the 40 years intervenOriginal application for writ of habeas ing since its passage such prohibition has been corpus by F. Myer, seeking release from put in force by a vote of the people in localiarrest. Order discharged.

ties embracing the greater part of the state. Newton & Newton, of San Antonio, Q. U. From what has been said it follows that the Watson, of Houston, J. J. Eckford, of Dallas, exact question here presented has never been and Campbell, Amerman & Nicholson, of before the courts. In numerous instances the Houston, for appellant.

construction of section 20, art. 16, supra, in B. F. Looney, Atty. Gen., W. A. Keeling and connection with the local option laws, has C. M, Cureton, both of Austin, and E. B. been involved and passed upon. Examples Hendricks, Asst. Atty. Gen., for the State.

are Lewis y, State, 58 Tex. Cr. R. 359, 127 S.

W. 808, 21 Ann. Cas. 656; Ex parte Elliott, 44 MORROW, J. Relator is under arrest | Tex. Cr. R. 577, 72 S. W. 837; Cross V. charged with the sale of intoxicating liquors State, 49 Tex. Cr. R. 437, 94 S. W. 1015; in violation of section 2 of the act of the Lawhon v. State, 26 Ter. App. 101, 9 S. W. 35th Legislature, which reads as follows.

355; Robinson v. State, 26 Tex. App. 82, 9

S. W. 61; Dawson v. State, 25 Tex. App. "The sale, barter, or exchange of spirituous, 1670, 8 S. W. 820; Ex parte Fields, 39 Tex. Cr. vinous, or malt liquors, or medicated bitters capable of producing intoxication-except for me

R. 55, 46 S. W. 1127; Ex parte Rippy, 44 dicinal, scientific, mechanical and sacramental Tex. Cr. R. 77, 68 S. W. 687; Adams v. purposes-are hereby prohibited within this Kelley, 17 Tex, Civ. App. 479, 44 S. W. 529; state.” Acts 35th Leg., 4th Called Session, Ex parte Pollard, 51 Tex. Cr. R. 488, 103 cbap. 24, p. 37.

S. W. 878; Ex parte Mills, 46 Tex. Cr. R.

224, 79 S. W. 555; State v. Schwartz, 103 He seeks release on writ of habeas corpus, Tex. 119, 124 S. W. 420; County v. Beall, 98, insisting that this section of the act of the Tex. 104, 81 S. W 526; Fox v. State, 53 Tex. Legislature is inoperative because in conflict Cr. R. 153, 109 S. W. 370; Keller v. State, with section 20 of article 16 of the Constitu- 87 S. W. 669, 1 L. R. A. (N. S.) 489; Ex parte tion, which reads:

Brown, 38 Tex. Cr. R. 303, 42 S. W. 554, "The Legislature shall, at its first session, en-| 70 Am. St. Rep. 743; Stallworth v. State, 16 act a law whereby the voters of any county, jus- Tex. App. 345; Holley v. State, 14 Tex. App. tice's precinct, town, city (or such subdivision 507; State v. Texas Brewing Co., 106 Tex. of a county as may be designated by the commis- 121, 157 S. W. 1166. sioners' court of said county), may, by a majority yote, determine from time to time whether

It is obvious that section 2 of the act, the sale of intoxicating liquors shall be prohibit- which prohibits the sale of intoxicating liqed within the prescribed limits.”

uors, cannot operate in territory where the

local option prohibition law has been adopt-. This clause, except the part in parenthesis, i ed by the people, unless we are prepared to was incorporated in the Constitution adopted abandon the settled construction given by in 1876. The part in parenthesis was put in this court to section 20, art. 16, of the Conby amendment adopted in 1891. In June, stitution. An example of this construction 1876, the 15th Legislature, in obedience to is found in the case of Dawson v. State, this provision of the Constitution, enacted a 25 Tex. App. 670, 8 S. W. 820, wherein are local option law providing for the holding of announced principles which have so frequentelections in the counties and subdivisions ly been ed by this court that we deem it named, and providing that, when at such an not amiss to reproduce, to some extent, the election the majority of the votes were cast language used in that decision, wherein “for prohibition," the sale of intoxicating Judge Willson, writing the opinion, said: liquors, except for medicinal and sacramen

"The extent of the power conferred upon the tal purposes, be absolutely prohibited within Legislature" by section 20, supra, was "to enact the prescribed bounds "until such time as the a law enabling the qualified voters of the localiqualified voters therein may, at a legal elec-ties designated to determine, in accordance with tion held for the purpose, by a majority vote, such law, whether the sale of intoxicating ligdecided otherwise.” The act also contained uors shall be prohibited within specified limits. a provision to the effect that if prohibition No power was conferred upon the Legislature to carried another election within the same such power was vested alone in the qualified vot

prohibit the sale of intoxicating liquors, but limits should not be held within less than ers of the localities named-such power to be 12 months. Gammel Laws, vol. 8, p. 862. exercised by them in the manner to be provided Prior to the passage of the act of the 35th | by the Legislature. It is only by a majority

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vote of the qualified voters of a locality that the opinion in the Dawson Case, the court in the sale of intoxicating liquors within the limits of Lewis Case states the conclusion that the said locality can be prohibited.

This construction of the Constitution therein had will, this power on the subject, is absolute and been adopted by the Legislature. This rule exclusive in the qualified voters of the locality of approval of judicial interpretation would

** If the power exists in the Legislature likewise apply to the readoption of the clause to deprive the locality of the right to have another election for the period of two years, the of the Constitution in 1891. Black on Intersame exists to deprive them of such right for pretation of Laws, p. 32. ten, twenty, or other number of years.

There are many localities in the state They, the qualified voters, enacted the law; it which adopted the local option law at a is their creature, called into existence by their time when, under its provisions, its violation direct agency, and they alone have the supreme constituted a misdemeanor. Others adopted and exclusive power, by a majority vote, to re- it after the offense became a felony, with the peal it. It is not within the power of the Leg- benefit of suspended sentence. Under the islature to add to or take from, or in any manner infringe upon, the law as adopted by the will rule established in the Lewis Case, supra, of the voters, or even, in our opinion, repeal it and often since applied, prosecutions for the in that particular locality. Whenever the law sale of intoxicating liquors are punished in bas been legally adopted by any particular local. some localities by fine and imprisonment, in ity, the subject has passed beyond the domain of others by confinement in the penitentiary legislative action, so that a different law cannot, with the privilege of suspended sentence; without the sanction of the qualified voters of and under the principles which are laid down that locality, given in a legal manner, be im- in the Dawson Case, supra, and of which posed upon such locality.

Any other view, it seems to us, would invade the constitu- Judge Ramsey, in the forceful language tional rights of the people of such localities, and quoted, declares to constitute the settled rule foist upon them a law which, perhaps, they nev- of this court, the Legislature is without er would have adopted, a law with respect to power to make in any of these instances the which their 'option' bad never been consulted or punishment for the sale of intoxicating liqascertained; a law enacted not by them, but uors more severe without the consent of the by the Legislature, without constitutional right.” people affected. The law in question, making Deciding that an act of the Legislature benefit of suspended sentence, cannot operate.

the penalty a felony in all cases without the changing the offense of violating the local

The local option prohibition law provides option law making it a felony could not be effective in a county that adopted the law time as the qualified voters therein may, at a

that it shall continue in force "until such while the offense was a misdemeanor, this court, in an opinion written by Judge 'Ram- legal election held for the purpose, by a

majority vote, decide otherwise." The law sey, after an exhaustive review of the sub- in question puts no limitation upon the time ject, the decisions and legislative enactments

it shall continue in force, and affords the says:

voters in the locality no option to discon"The first time the question

came tinue it. In these respects the people of the before this court was in the case of Dawson v. locality are deprived of rights, according to State, 25 Tex. App. 670 [8 S. W. 820). This de- the construction of the Constitution given cision was rendered by this court when compos. by this court in the Dawson Case, supra, ed of Judges White, Hurt, and Willson. * While it does not involve the precise question and reaffirmed in the Lewis Case and others here raised, in principle, the rule there announc- therein cited, of which the Legislature has ed is conclusive of the question before us.

no right or power to deprive them. Such The decision in that case has been right, giving effect to the decisions menmany times questioned and often assailed, but tioned, could be exercised only in the event has remained the settled rule of this court from that the law in question should be construed that day until this, and has been in terms ap- as repealing the local option prohibition plied by the court to the very question here existing in the various localities in which it raised.

We have thus reviewed, at more length than might ordinarily seem either has been adopted, and this it has been repeatdesirable or necessary, the decisions of this edly declared is beyond the power of the court, which for almost a quarter of a century,

Legislature. See Ex parte Elliott, 44 Tex. through many changes of the personnel of its Cr. R. 575, 72 S. W. 837, to the effect "that members, have uniformly and without dissent the local option law, once adopted in a girheld to the proposition that it is not within the en territory, remains the law in that terri. power of the Legislature to impose upon a com- tory until it is repealed by the voters of the munity which had theretofore adopted the local

same territory." See, also, Ex parte Pollard, option law, penalties and forfeitures which did 51 Tex. Cr. R. 488, 103 S. W. 878. not exist at the time of such adoption, and which rule had many times, by line upon line Chief Justice Brown, writing the opinion of

Speaking of this clause of the Constitution, and precept upon precept, been enforced and established." Lewis v. State, 58 Tex. Cr. R. the Supreme Court, said: 331, 127 S. W. 808, 21 Ann. Cas. 656.

"The section of the Constitution quoted pro

vides a method [a referendum) by which the votAdverting to the acts of the Legislature ers of a given territory may exercise the soverpassed subsequent to the rendition of the eign power of legislating upon this subject,

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