had violated a traffic ordinance on some pre- | plugs. vious occasion.

The judgment is affirmed.

On Motion for Rehearing.

[7] Our attention is called to the fact that this prosecution for a misdemeanor is begun by an indictment returned to the district court of Garza county. That court being without jurisdiction to try the cause, the statute required that it should, by order of court, be transferred to a court having jurisdiction. Vernon's C. C. P. art. 483.

The record before us contains no order of the district court transferring the case to the county court, and, the county court being without power to receive an indictment from the grand jury, there is a failure in the record to show facts necessary to disclose the jurisdiction of the county court to try the case. Richardson v. State, 57 Tex. Cr. R. 285, 122 S. W. 560; Harris v. State, 57 Tex. Cr. R. 84, 121 S. W. 1116; C. C. P. art. 485. The motion for rehearing is granted, the affirmance set aside, and the judgment is reversed and remanded.

CLARK v. STATE. (No. 5228.)

The state relied upon circumstantial evidence, a part of which consisted of verbal statements made by the appellant. The error complained of is predicated upon the proposition that these statements were made while appellant was under arrest, unwarned, and were such as the state was inhibited from using by the terms of article 810, Code Cr. Proc.

The deputy sheriff, having appellant under suspicion of committing the offense, went to appellant's place of business and told him he wanted him to come to the sheriff's office. Appellant went into a room for the purpose of changing his clothes. His wife also went in the room, and the deputy sheriff followed, requiring that appellant should have no conversation with his wife. On going to the sheriff's office with the officer, appellant was interrogated by him with reference to the property in question. He was dismissed at noon with instructions from the officer to return after lunch, which he did, remaining in company with the officer mentioned and another for some time, after which he was 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 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, which was searched, after which they took him in the same manner to his place of busi

1. CRIMINAL LAW 406(3) ORAL STATEMENTS MADE WHILE "UNDER ARREST." Verbal statements concerning stolen prop-ness, and after making further search took erty, made to arresting officer by defendant while he understood that he was under arrest, but before he was taken to jail, held to have been made by defendant while "under arrest," within Code Cr. Proc. 1911, art. 810.

2. CRIMINAL LAW 519(3) — ORAL STATEMENTS MADE WHILE UNDER ARREST.

him before the grand jury, and immediately after he was released therefrom he was placed by said officers in jail. He understood that he was under arrest from the beginning.

The view taken by the state is that the appellant was not under arrest until he was 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 it clearly appears from the surrounding facts. Prendergast, J., dissenting.

"If by the acts and conduct of an officer having the party in charge he is led to believe he 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 ty; Wm. N. Bonner, Judge.

H. A. Clark was convicted of the offense of concealing stolen property, and appeals. Reversed and remanded.

implied in the statute, are not admissible."

made in formal words; it may clearly appear [2] It is not necessary that the arrest be from the surrounding facts. Nolen v. State,

8 Tex. App. 585; Nolen v. State, 9 Tex. App. State, 64 Tex. Cr. R. 114, 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.

Weeks & Weeks, of Wichita Falls, for ap- 425; Zimmer v. pellant.

MORROW, J. Appellant was convicted of the offense of concealing stolen property. [1] The property involved was certain Michelin automobile casings and certain spark

Tex. Cr. R. 408, 71 S. W. 962; Buckner v. State, 52 Tex. Cr. R. 271, 106 S. W. 363; Calloway v. State, 55 Tex. Cr. R. 263, 116 S. W. 575; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920; Oliver v. State (Tex. App.) 197 S. W. 185.

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During the appellant's examination by the officers in the sheriff's office he declared that he did not handle Mechelin tires, and during the search in his place of business, the officers having discovered a Mechelin tire with the number cut off, and calling appellant's attention thereto, appellant stated, "Yes," and was then asked if he had any more Mechelin tires, to which he replied, "No." He also said that the tire first found was a "second." To this one of the parties replied, the Mechelin people do not make "seconds." Appellant declared that they did. He was also asked where he got the tire, replying that it was on a car he traded for. He also said, in response to questions asked him about other Mechelin tires found in his place of business, that he bought them on a Ford. He also said, in response to an inquiry by the officers, that he did not know there were any spark plugs in his desk or trunk; that he had had to buy some because he did not think he had any.

Appellant's defense on the trial was that he had bought the spark plugs found in his possession, and that he had bought the four Mechelin tires in his possession from a person who brought them to his place of business. The state introduced proof of his statements after he was taken to the sheriff's office and while he was in company with the officers during the search of his room and place of business, and then introduced evidence to show that the statements thus proved to have been made by appellant were false, and they, 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 the case of Dover v. State, 197 S. W. 196. The remarks made in the concurring opinion in that case express our views with reference to the admissibility of the statements used against appellant and made by him while he was under arrest and unwarned. From that opinion the following quotation is taken:

testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks to use to prove his guilt. nan's Case, 42 Tex. Cr. R. 464, 60 S. W. 766, "The correct rule, we think, is stated in Herwhich is summarized in the syllabus as follows: A confession or admission of an inculpatory fact by a defendant, where he is under arrest and unwarned, cannot be used as evidence against him. Any fact or circumstance involved in a statement by defendant while in jail or under arrest, and when he has not been cautioned, which may be used by the state as a criminative or inculpatory fact against him, comes within the statutory rule as to confession, although the same may not be technically a confession or admission. And defendant cannot be impeached as to such statements, following Bailey v. State, 40 Tex. Cr. R. 150 [49 S. W. 102].'

"Other cases in point are the following: Wright v. State, 36 Tex. Cr. R. 432, 37 S. W. 732; Williams v. State, 10 Tex. App. 527; Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301; Brown v. State, 55 Tex. Cr. R. 581, 118 S. W. 139; Adams v. State, 16 Tex. App. 172; Wimberly v. State, 22 Tex. App. 510 [3 S.. W. 717]; Rogers v. State, 44 Tex. Cr. R. 353 [71 S. W. 18]; Binkley v. State, 51 Tex. Cr. R. 57, 100 S. W. 780; Nolen v. State, 9 Tex. App. 419."

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J. I believe the opinion I wrote in the Dover Case, 197 S. W. 196, is correct, and I therefore respectfully dis

sent.

WRIGHT v. STATE. (No. 5207.)

(Court of Criminal Appeals of Texas. Dec. 11, 1918.)

1. CRIMINAL LAW 9251⁄2 (3)-NEW TRIALCONDUCT of Jury.

That the jury, in their deliberations, referred to the fact that defendant during the trial dozed off to sleep and nodded several times, does not require a new trial, since the jury was not inhibited from talking of his manner and conduct in passing upon the weight of his testi

mony.

2. CRIMINAL LAW 1144(18)-APPEAL-NEW TRIAL-PRESUMPTION IN FAVOR OF TRIAL COURT'S RULING.

"In agreeing to the reversal of this cause, we deem it proper to state that in our judgment the testimony given by the officers who had appellant under arrest that while under arrest, without warning, he made in their presence a verbal statement which was used on the trial against him, was not admissible. The 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 and signed by him, which written statement 3. CRIMINAL LAW 1184 SENTENCE-MODIFICATION. shall show that he has been warned by the 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.

INDETERMINATE

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State.

MORROW, J. Appellant was convicted of murder, and his punishment fixed at confinement in the penitentiary for a period of ten years.

ded several times, does not require a new trial, and the jury was not inhibited from talking of his manner and conduct in passing upon the weight to be given his testimony. Moreover, the order of the court overruling the motion for a new trial shows that

the court heard evidence and thereon determined that the motion should be overruled. In this state of the record, the presumption in favor of the correctness of the court's ruling, which is indulged on appeal, would im

ply that on the hearing of the motion the evidence adduced was sufficient to authorize

the judgment rendered thereon.

[3] The sentence failed to apply the Indeterminate Law (article 865a, Vernon's Code Cr. Proc. p. 855). The judgment of the lower court entering the sentence will be reformed so that it will provide for the confinement of Appellant and deceased, Criss Edwards, appellant in the state penitentiary for a pewere young men, members of the same fam-riod of not less than five nor more than ten years. See Cisneros v. State, 76 Tex. Cr. R. ily, stepbrothers. The difficulty arose over 313, 174 S. W. 608. the contention of deceased that appellant had broken a pair of clippers and that he should pay deceased for them. There is evidence 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 insulting remarks towards his stepmother, the mother of appellant. Deceased, on learning (Court of Criminal Appeals of Texas. Oct. 23,

The judgment of the lower court is ordered reformed and affirmed.

Ex parte MYER. (No. 5121.)

1918. On Motion for Rehearing, Nov. 27, 1918. Dissenting Opinion on Rehearing, Dec. 18, 1918.)

TION.

CONSTRUC

that appellant had gone in the house and gotten a gun, ran, and while he was running appellant fired one shot with a shotgun loaded with buckshot; some of the shot taking effect in the back of deceased and in the 1. CONSTITUTIONAL LAW 14 back of his neck, resulting in his death. Appellant claimed that he shot deceased because he was frightened by his threats and conduct, also because of his insulting language towards appellant's mother. Some of the witnesses who were present disclaimed hearing the remarks which appellant and others testified to, and there was an issue of fact growing out of the evidence as to wheth-toxicating liquors throughout the state, violates er the remarks were in fact made.

Appellant complains of the fact that the court submitted to the jury the issue of murder, claiming that the facts would support a conviction of no higher grade of offense than manslaughter. The jury was instructed upon the law of manslaughter, and there was evidence raising that issue, but not such to establish as a matter of law that adequate cause existed, nor that, as resulting therefrom, appellant's mind was rendered incapable of cool reflection. There was testimony coming from the appellant himself, while testifying as a witness, which would be sufficient to justify the jury in rejecting his defensive theory of manslaughter.

[1, 2] The reference of the jury in their deliberations to the fact that the appellant, during the trial, dozed off to sleep and nod

The language selected by the framers of a constitution, when its meaning is clear, controls the court in interpreting it.

2. INTOXICATING LIQUORS 17 — PROHIBI

TION-CONSTITUTIONALITY.

Acts 35th Leg. (4th Called Sess.) c. 24, p. 37, prohibiting the sale, barter, or exchange of inConst. art. 16, § 20, relating to local option. 3. INTOXICATING LIQUORS 17- PROHIBITION-POLICE POWER.

In the absence of Const. art. 16, § 20, there would be no restriction upon the power of the Legislature to prohibit the sale of intoxicating liquors throughout the state under the police power.

On Motion for Rehearing.
4. INTOXICATING LIQUORS 17-WAR —4—
PROHIBITION POWER OF STATE LEGISLA-
TURE-MILITARY NECESSITY.

The state Legislature cannot, on the ground of military necessity, pass a general prohibition law, under Const. art. 16, § 28, the federal government being able to take care of its army.

5. CONSTITUTIONAL LAW 70(1)—Courts. The courts have no power to legislate.

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

He seeks release on writ of habeas corpus, insisting that this section of the act of the Legislature is inoperative because in conflict with section 20 of article 16 of the Constitution, which reads:

"The Legislature shall, at its first session, enact a law whereby the voters of any county, justice's precinct, town, city (or such subdivision of a county as may be designated by the commissioners' court of said county), may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."

to put absolute prohibition of the sale of intoxicating liquors in effect in the state, or any part of it, except by means of the local option law, which, with certain amendments, is still in force, unless annulled by the act in question, and during the 40 years intervening since its passage such prohibition has been put in force by a vote of the people in localities embracing the greater part of the state. From what has been said it follows that the exact question here presented has never been before the courts. In numerous instances the construction of section 20, art. 16, supra, in connection with the local option laws, has been involved and passed upon. Examples are Lewis v. State, 58 Tex. Cr. R. 359, 127 S. W. 808, 21 Ann. Cas. 656; Ex parte Elliott, 44 Tex. Cr. R. 577, 72 S. W. 837; Cross v. State, 49 Tex. Cr. R. 437, 94 S. W. 1015; Lawhon v. State, 26 Tex. App. 101, 9 S. W. 355; Robinson v. State, 26 Tex. App. 82, 9 S. W. 61; Dawson v. State, 25 Tex. App. 670, 8 S. W. 820; Ex parte Fields, 39 Tex. Cr. R. 55, 46 S. W. 1127; Ex parte Rippy, 44 Tex. Cr. R. 77, 68 S. W. 687; Adams v. Kelley, 17 Tex. Civ. App. 479, 44 S. W. 529; Ex parte Pollard, 51 Tex. Cr. R. 488, 103 S. W. 878; Ex parte Mills, 46 Tex. Cr. R. 224, 79 S. W. 555; State v. Schwartz, 103 Tex. 119, 124 S. W. 420; County v. Beall, 98 Tex. 104, 81 S. W 526; Fox v. State, 53 Tex. Cr. R. 153, 109 S. W. 370; Keller v. State, 87 S. W. 669, 1 L. R. A. (N. S.) 489; Ex parte Brown, 38 Tex. Cr. R. 303, 42 S. W. 554, 70 Am. St. Rep. 743; Stallworth v. State, 16 Tex. App. 345; Holley v. State, 14 Tex. App. 507; State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166.

is found in the case of Dawson v. State, 25 Tex. App. 670, 8 S. W. 820, wherein are announced principles which have so frequently been applied by this court that we deem it not amiss to reproduce, to some extent, the language used in that decision, wherein Judge Willson, writing the opinion, said:

It is obvious that section 2 of the act, which prohibits the sale of intoxicating liquors, cannot operate in territory where the local option prohibition law has been adoptThis clause, except the part in parenthesis, 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 this provision of the Constitution, enacted a local option law providing for the holding of elections in the counties and subdivisions named, and providing that, when at such an election the majority of the votes were cast "for prohibition," the sale of intoxicating liquors, except for medicinal and sacramental purposes, be absolutely prohibited within the prescribed bounds "until such time as the qualified voters therein may, at a legal election held for the purpose, by a majority vote, decided otherwise." The act also contained a provision to the effect that if prohibition carried another election within the same limits should not be held within less than 12 months. Gammel Laws, vol. 8, p. 862. Prior to the passage of the act of the 35th

"The extent of the power conferred upon the Legislature" by section 20, supra, was "to enact a law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. No power was conferred upon the Legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named-such power to be exercised by them in the manner to be provided by the Legislature. It is only by a majority

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