complice to arson, and denied suspension of sentence, and he appeals. Reversed, with directions to suspend sentence. J. C. Darroch and L. E. Patterson, both of Goldthwaite, and Wilkinson & McGaugh, of Brownwood, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. Appellant was convicted for accomplice to arson, and the jury assessed his punishment at the lowest prescribed by law at the time of the trial, and recommended his sentence be suspended. In one count appellant was indicted as an accomplice to arson-the arson committed by Raymond Williams and Otis Allen. In another count as an accomplice of an attempt of arson by the same persons. He properly pleaded for a suspended sentence. The court submitted to the jury both of said counts for a finding, and also the law of suspended sentence as applicable to each. The jury found him guilty under the first count, and also in their verdict properly recommended that his sentence be suspended. After the verdict the judge concluded that the suspended sentence could not be applied to a conviction for said offense of accomplice to arson, and thereupon declined to enter a judgment suspending the sentence, but instead entered judgment and sentence imposing confinement in the penitentiary for the term of years found by the jury. [1] The act of 1913, p. 8, § 1, art. 865b, Vernon's Crim. Statutes, provides that when there is a conviction of felony, except, among others, for arson, and the penalty imposed Carlisle v. State, 31 Tex. App. 546, 21 S. W. 358, wherein he, in one sentence, said: "In this state there is no distinction between the punishment of an accomplice and a principal. Why? Because the crime is the same." the Carlisle Case was the question of venue. The sole question decided and discussed in In that case murder by Carlisle's principal was committed in Grayson county. Carlisle was not a principal therein, but an accomplice of the murder, and at the time of the murder was not in Grayson county, but in another county. The court held that the accomplice could be prosecuted in Grayson county where the murder was committed of which he was an accomplice. [2] In the construction and application of our suspended sentence law statute, and the proceedings in this court when the lower court has wrongfully refused to suspend the sentence in accordance with the verdict, this court has reversed the sentence, with instructions to the lower court to enter the judgment suspending the sentence, take the accused's recognizance, and discharge him. Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998; Martin v. State, 71 Tex. Cr. R. 212, 158 S. W. 994; Brown et al. v. State, 71 Tex. Cr. R. 212, 158 S. W. 807. We now adhere to that procedure, and reverse said sentence, and instruct the lower court to enter the proper judgment suspending the sentence, and discharge him on his own recognizance, in accordance with the verdict and law. Reversed, with instructions. RENFRO v. STATE. (No. 4708.) is five years or less, the court shall suspend (Court of Criminal Appeals of Texas. Nov. 20, the sentence upon the recommendation and finding of the jury to that effect. This article does not except accomplice to any offense. There is no separate offense prescribed by our law as an "accomplice," but there is an offense of an "accomplice" to most crimes. An accomplice to any given offense must be specifically indicted as such. 1 Branch's Ann. P. C. § 724, and authorities noted. No person indicted as a principal for any offense can be convicted as an accomplice to such an offense; and vice versa, no person indicted as an accomplice of any given offense can be convicted as a principal therein. Arson is one offense and an accomplice to arson is an entirely separate and distinct offense. Crook v. State, 27 Tex. App. 243, 11 S. W. 444; Kaufman v. State, 70 Tex. Cr. R. 447, 159 S. W. 58. As an accomplice to arson was not one of the excepted felonies where a suspended sentence was not applicable, the court clearly erred in entering a sentence imposing imprisonment in the penitentiary on appellant, and in not suspending his sentence. Perhaps the trial court was misled in this matter by an expression by Judge Hurt in 1917.) 1. CRIMINAL LAW 784(1)-INSTRUCTIONSCIRCUMSTANTIAL EVIDENCE. The evidence being purely circumstantial, the charge should instruct on circumstantial evidence. 2. GAMING 98(2)-CARD PLAYING-SUFFICIENCY OF EVIDENCE. The state's evidence on a prosecution for playing cards, being purely circumstantial, and entirely consistent with defendant's, that they others, but had not begun, is insufficient for conwere expecting to play cards on the coming of viction. Appeal from Cottle County Court; W. O. Jones, Judge. Dick Renfro was convicted, and appeals. Reversed and remanded. C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The appellant's conviction was for violation of the law against gaming, the specific charge being as follows: "Did then and there unlawfully play at a game played with cards at a place which was not then and there a private residence and then and there occupied by a family." The statute covering the offense is article! 548, P. C. It appeared from the state's testimony that two witnesses, who were officers of the county, entertained suspicions that persons in a certain hotel were engaged in a game of poker, and that they went to the hotel and looked through the transom over the door and recognized appellant and two others sitting on the floor, each of them having money in front of him. One of these witnesses claims he saw a deck of cards in the hands of one of the parties, but did not know what kind of cards; saw no spots on them; did not see anybody shuffle the cards or play or bet with or at them; that the door to the room was locked. The other witness testified that he saw appellant sitting on the floor with money in front of him; did not see any cards or any one playing or betting at any game. He further testified that as they left they met two other parties, namely, Roscoe Renfro and Paul Huff, coming up the steps. Appellant's testimony was to the effect that he and two other parties who were in the room with him and Mr. Huff and Mr. Renfro had made arrangements to play a game of cards, but did not engage in it for the reason that, while they were waiting for Huff and Renfro to return from breakfast and begin the game, the officers came and no game was played. In fact, he stated that they had no cards, but were waiting for Huff and Rerfro to bring them when they came back from breakfast. [1, 2] The charge was excepted to because of the failure to charge on circumstantial evidence, and the special charge on that subject was refused. This was error. Appellant contends that the evidence was insuflicient, and in this we think he was correct. The evidence was purely circumstantial, and that of the state entirely consistent with that of the appellant to the effect that they were expecting to play a game of cards on the coming of Renfro and Huff, but it had not begun. Fallwell v. State, 48 Tex. Cr. R. 35, 85 S. W. 1069; Berry v. State, 85 S. W. 14; Hale v. State, 49 Tex. Cr. R. 105, 90 S. W. 654; Looper v. State, 56 Tex. Cr. R. 498, 120 S. W. 880; Bowen v. State, 69 Tex. Cr. R. 242, 153 S. W. 306; Ables v. State, 49 Tex. Cr. R. 292, 92 S. W. 414. The motion for a severance, which was formal, as required by article 727, Vernon's C. C. P., was filed in order to secure the testimony of Jim Connor. Apparently, the mo tion should have been granted. C. C. P. art 791, and cases cited in Vernon's Crim. Statutes, art. 91, P. C.; Branch's An. P. C. pp. 373, 374, and cases cited. As presented in the bill of exceptions and qualified by the court, we are unable to determine whether there was reversible error in refusing the motion for a severance. Other questions presented are not likely to arise in the event of another trial. For the errors pointed out, the judgment of the lower court is reversed, and the cause remanded. ISLER v. STATE. (No. 4728.) (Court of Criminal Appeals of Texas. Nov. 28, 1917.) BAIL 65-APPEAL BOND-DISMISSAL. The recognizance failing to set out the tory form, but only reciting charge of aggravatamount of punishment, as required by the statued assault, and conviction of simple assault, appeal will be dismissed. Appeal from Jasper County Court; C. C. Brown, Judge. Richard Isler was convicted, and appeals. Appeal dismissed. C. C. Ingram, of Jasper, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P, J. Appellant was charged with aggravated assault on his wife, and was convicted of simple assault, and fined in the sum of $25. We think the motion of the Assistant Attorney General to dismiss the appeal on account of the insufficiency of the recognizance should be sustained. The recognizance fails to set out the amount of the punishment as is required by the statutory form. It recites that appellant was charged with aggravatell assault and convicted of simple assault, but does not mention the amount of punishment. The motion will be sustained, and the appeal dismissed. REYNOLDS v. STATE. (No. 4611.) (Court of Criminal Appeals of Texas. Nov. 28, 1917.) 1. DISORDERLY HOUSE 12 INDICTMENT AND INFORMATION 122(5)-KEEPING DISORDERLY HOUSE-ASSIGNATION HOUSES. A complaint that defendant kept a house to be used by "men for the purpose of meeting by mutual appointment made by another for the purpose of sexual intercourse" does not state an offense, and is a variance from information charging it was done for the purpose of men and women meeting for such intercourse. 2. INDICTMENT AND INFORMATION 41(2)— INFORMATION-NECESSITY FOR VALID COM PLAINT. Without a valid complaint an information is worthless. 3. INDICTMENT AND INFORMATION 1-NECESSITY FOR INFORMATION DISORDERLY HOUSE. The information is a prerequisite to a prosecution in the county court for keeping a dismeeting for sexual intercourse. orderly house for the purpose of men and women 4. CRIMINAL LAW 878(2)-DEFECTIVE INFORMATION-GENERAL VERDICT. Where one of several counts in an information is invalid for not being supported by the complaint, and the evidence tends to support the offense attempted to be charged in such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes count, and there is a general verdict, a convic- 14. WITNESSES tion will be set aside. -NEW MATTER. 270(2)-Cross-EXAMINATION Appeal from Wichita County Court, Har-merely as to his alibi, allowing the state to ask Defendant's wife having testified for him vey Harris, Judge. her as to her improper relations with deceased, was error, the state thus making her testify against her husband on new matter. Mrs. A. C. Reynolds was convicted of keeping a disorderly house, and she appeals. Reversed and remanded. W. Lindsay Bibb, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. [1-4] Appellant was charged in two counts with keeping a disorderly house-the evidence indicates that if anything it was an assignation house. The complaint charges that she kept this house and permitted it to be used by men for the purpose of meeting by mutual appointment made by another for the purpose of sexual intercourse. The information charges that it was done for the purpose of men and women meeting for such intercourse. This count in the information was attacked; the court overruled. There is a clear variance between the complaint and information. The Legislature has as yet not denounced a punishment for men to meet at assignation houses for such immoral purposes. It has confined its enactment to the meeting of men and women for such purpose. The complaint charges no violation of the law, while the information charges one that could be. Without a valid complaint the information is worthless. The information is a prerequisite to a prosecution in the county court for this offense. This count will be quashed, as it should have been in the lower court. This count was submitted along with the other count. The evidence rather tends to support the meeting of men and women at the house by mutual appointment. The verdict was general. 5. CRIMINAL LAW 448(8) · OPINION EVIDENCE-PREDICATE. the homicide by opinion of witness that tracks of a horse leading from the place were those of defendant's horse; he having merely stated that one of the tracks was made by a horse having a peculiar chip or split in the hoof. The state may not connect defendant with Prendergast, J., dissenting in part. Appeal from District Court, Falls County; Richard I. Munroe, Judge. Will Black was convicted of murder, and appeals. Reversed and remanded. George Carter and Nat Llewellyn, both of Marlin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of murder, his punishment being assessed at 25 years' confinement in the penitentiary. The state relied upon the fact that appellaut and Virgil Vasser killed Green Vasser, the father of Virgil. It is deemed unnecessary to go into a statement of the facts. Virgil Vasser turned state's evidence and testified. [1] There are two or three bills of exception reserved to the action of the court permitting certain witnesses to testify to statements made by Virgil Vasser, who was also called Boozer Vasser. These statements were made after the examining trial, and after Boozer Vasser had talked to De Graffenreid in the absence of appellant. The sheriff of Falls county, one of these witnesses, testified: "I talked to Boozer Vasser after the examining trial and after he had talked to Flem De Graffenreid, while he was in jail of Falls county in The judgment will be reversed and re- the absence of Will Black. Boozer told me that manded. -- he killed his father; that Will Black got him to kill him; that Will Black made it up with me on Monday evening first; then Tuesday evening he seen him again and he made this proposal to him, and he says that Will Black told him that on Tuesday evening, says, 'I will be down there in the morning, and want you to do me a favor," " etc. BLACK V. STATE. (No. 4551.) (Court of Criminal Appeals of Texas. Nov. 21, 1917. Dissenting Opinion, Dec. 6, 1917.) --without going into further details of this bill of exceptions. It contains quite a num1. CRIMINAL LAW 1093 BILL OF EXCEPTIONS SCOPE. ber of statements occurring between Boozer, Admission of declarations of a coconspirator or Virgil, Vasser and De Graffenreid. What after the homicide, the subject of the conspiracy, is here said is also said with reference to will be held error, unless the bill of exceptions shows that they were similar to his testimony, and properly introduced to meet evidence of declarations inconsistent with his testimony; and mere statement in bill of exceptions that he had made contradictory statements is not enough. 2. WITNESSES 389-EVIDENCE OF FACT AFTER ADMISSION. If a witness admits making contradictory statements, they cannot be proved by others. 3. HOMICIDE 166(3)-EVIDENCE-MOTIVE. Evidence of indiscretion of defendant's wife with deceased, not known by defendant before the killing, is not admissible to show motive. Va other bills of exception showing similar Volved in the conspiracy are not introduci- at least since Cox et al. v. State, 8 Tex. App. [ statements explanatory of or corroborative of 256, 34 Am. Rep. 746; Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1058. his testimony on the trial, this might be introducible; but that would be entirely owing to how the matter arose. It must be brought within the rule laid down by the authorities cited. This bill of exceptions does not undertake to so show. The other bills are not qualified by the judge. Those bills show error as they are presented by this record. [3] Another bill of exceptions shows error in the court's ruling in this: That Sam Johnson and Jim Young and others were permitted to testify that they saw Stella Black, in the absence of defendant. Wil Black, commit indiscretions with deceased, Green Vasser; the bill showing that Will Black, appellant, knew nothing of this conduct on the part of his wife and Green Vasser before the killing. Said evidence was introduced by the state to prove motive on the part of the defendant, Will Black. Young v. State, supra, and Branch's Ann. P. C. §§ 1 and 2, where numerous authorities are collated. This evidence was inadmissible. The court qualified only one of these bills by stating that Boozer Vasser had, on crossexamination, admitted that he had made contradictory statements. This is all the bill shows with reference to the matter, and| [2] It is also stated by the authorities this is but a general statement by the court that if a witness admits making contradicin signing the bill. This does not authorize tory statements inquired about, neither parthe introduction of the testimony set out in ty is entitled to prove that he did make such the bill of exceptions. How the witness con- statements. The authorities on this are tradicted himself and about what is not stat- clear. See Walker v. State, 17 Tex. App. ed by the judge in his qualification. It is 31; Rodriguez v. State, 23 Tex. App. 507, not all contradictory statements that au- 5 S. W. 255; Barnard v. State, 45 Tex. Cr. thorize the sustaining of a witness. The R. 71, 73 S. W. 957. These authorities might contradictory statements must be in refer- be stretched out indefinitely. Whatever ence to matters about which he testified, these contradictory statements were, if apand must be such as are admissible to cor- pellant admitted making them they could not roborate statements already testified, and be proved by other parties and if admissiunder such circumstances as to show he was ble through other parties it is on the theory not influenced by some ulterior motive or of corroboration of his statements delivered purpose. A rule sustained by the authori- before the jury. This bill of exceptions does ties is that, where a state's witness is im- not so present the question. peached or attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the trial, it is not error to permit the state to support the witness by showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial. The authorities will be found collated in section 181, p. 110, Branch's Ann. P. C. It is also the rule that where the opposing case is that the witness is prompted by improper or corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, the party introducing such witness may prove that his witness stated the same facts prior to the time when the motive ex- [4] Another bill recites the defendant placisted, or prior to the occasion which might ed his wife on the stand, the substance of her prompt manufacturing the testimony. These testimony being that on the morning that authorities will be found on page 111 of Mr. Green Vasser was killed, and at the time Branch's Ann. P. C. There is nothing of Virgil Vasser stated he and defendant killed that sort shown or attempted to be shown him, or acted in conjunction in the killing, by this bill of exceptions. The court in a appellant was at home with her, and her tesgeneral way says the witness "on cross-ex- timony is of such a nature that, if true, it amination made contradictory statements." contradicted the accomplice testimony as to This may or not have been such as were the presence of defendant at the time and proper to be corroborated. There is nothing place of the killing. This was all the testito show that it referred to or was connected mony introduced by the defendant through with the statements that he made while de- his wife. She was then asked by the state livering his testimony. What these state- quite a number of questions with reference to ments were and how they were in conflict matters not involved in the testimony, nor with each other, or whether the testimony relevant to that elicited from the wife by decould be shown in support of his testimony on fendant. These involved matters of conduct the trial, this bill of exceptions does not ex-between deceased and appellant's wife, mainplain; nor is it shown why such testimony ly to the effect that deceased visited his house should have gone before the jury. If ap- and wife in his absence, and other matters of pellant made statements different from those that character not elicited by the defendant. delivered on the trial before the jury, and This testimony should not have gone to the to meet these the state would be able to jury. The state by this means was making show that he made similar statements about the wife testify against her husband, and by the time and in connection with the other this manner of cross-examination made her a state's witness as to new matter elicited on him consistent with the evidence he gives on cross-examination. The authorities, supra, the trial. and a great number of others sustain this bill of exceptions. PRENDERGAST, J. (dissenting in part). The witness Johnson was permitted to tes- The bills of exceptions to the testimony of tify, over objections of appellant, that he Mr. De Graffenreid and Mr. Plott, the sheriff, knew appellant's wife and deceased, Vasser, directly, on their face, show that the witness and that he had seen deceased at defendant's "Boozer" Vasser admitted that he had made house on several occasions in the absence of contradictory statements, in effect, directly the defendant, and, without stating the testi- the reverse of what he had testified on this mony as delivered, the substance of it is their trial. This was proven by the appellant for conduct was quite reprehensible. It is shown the very purpose of impeaching his testimony in the bill that appellant was not present, on this trial. Under such circumstances and seems never to have been informed of there can be no question but that the state that fact prior to the killing. This testimony had the right to support his testimony upon was, under the circumstances, not admissible. this trial as proving, as it did, by said De See Young v. State, 59 Tex. Cr. R. 137, 127 S. Graffenreid and Plott that soon after the killW. 1058. The same may be said of the testi- ing said witness Vasser made to them statemony of the witness Young, which was to ments of the facts corresponding substantialthe effect that he knew the parties, and had ly, if not literally, to what his testimony was at one time Green Vasser, Will Black's wife, on this trial. Their testimony was clearly and Boozer, the accomplice, chopping cotton admissible for the purpose of supporting the for him. The pay for all these was handed | attempted impeachment of said witness. The to Stella Black, wife of appellant. Will Black was not present and knew nothing of it. These matters were inadmissible. [5] There is another bill of exceptions that may be noticed in a general way. It is not very specific, but it is sufficient to say with reference to it that, unless the matters therein testified are made more certain and definite upon another trial, they should be excluded. This is with reference to horse tracks. The witness testified, in a general way, that he followed horse tracks going from the neighborhood of where the homicide occurred to a certain point, and it is not shown that he measured them or in any way compared them, except by noticing them on the ground, and the fact that one of the tracks was made by a horse that had some peculiar chip or split place in the hoof. If it is undertaken to connect defendant with this horse as tending to show his presence at the time and place of the killing, the evidence should be more specific. The mere opinion of the witness in regard to these being the tracks of appellant's horse will not be sufficient under the predicate laid. The rule laid down in Tankersley v. State, 51 Tex. Cr. R. 174, 101 S. W. 234, seems to be applicable to this bill of exceptions. If tracks are sought to be used upon another trial, they should be more specific and definite in their identification as the tracks of the horse appellant is supposed to have ridden. For the reasons indicated the judgment will be reversed and the cause remanded. MORROW, J. Concurring in the reversal, I want to make it clear that there is no intention to modify the established rule of evidence which permits the party offering a witness under proper circumstances to support him by proof of prior statements made by court so limited, by his charge, their testimony. The question of proving what the witness Vasser had told before was not an attempt to prove the declaration of a conspirator at all. No such question arose. The testimony was not offered for that purpose. If the circumstances proven would show or tend to show that appellant knew of the conduct of his wife with the deceased, such testimony would be admissible as showing a motive by appellant to kill the deceased. It would not be necessary to prove his actual knowledge of her intimacy with deceased. Of course, if the testimony showed that he had no notice or knowledge of her conduct, then the testimony of the witnesses as to her acts of intimacy would not be admissible. All the testimony about the horse's tracks was admissible. I concur in the reversal solely on the admission of the cross-examination of appellant's wife on independent new matters incriminating appellant which were not testified to in any way by her on direct examination. MOYE v. STATE. (No. 4721.) (Court of Criminal Appeals of Texas. Nov. 28, 1917.) CRIMINAL LAW -SUFFICIENCY. 1090(1)-APPEAL-RECORD Where record on appeal from conviction of murder contains no statement of facts or bill of exceptions, and nothing in the motion for new trial can be reviewed in the absence of the facts, the conviction will be affirmed. Appeal from District Court, Kaufman E. B. Hendricks, Asst. Atty. Gen., for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |