*1 n 1910.] v. The State. Woodall in the filed herein court below stated brief to be question merely of the witnesses credibility assume, course, on that a statement of facts could jury. We filed. not have aided on his or one would have been appeal, There is in the bill only record one exception, complains of the district reference to improper argument attorney. By bill it this that the district in his appears attorney, closing argument, turned and pointed hand at the and told the jury, . “You have there that wretched In wretch.” what connection this was said, whether to the mere matter of respect identity, and whether justified not, we can not the nature of things determine. The record does not show that any request was in- court to struct the this remark counsel; what action touching was taken court in to same the bill respect does not state. It is set- well tled that extent manner of argument confined largely court, the discretion trial and that it is not subject to revision in a clear ease of abuse. except the absence of a fact's, statement of or some further matter, thrown on light it is not clear that in any event appellant’s rights could have been injured by a designation of character, conceding it was improper. This is the only on which the ground is based. appeal no error in the Finding below, the court it must follow conviction must be affirmed, as is now done.
Affirmed. H. G. v. The State. 16,
No. 501. Decided March Swearing—Husband 1.—False and Wife—Evidence. Upon trial for swearing, false where pleaded defendant guilty, it was re error to versible admit the testimony of a witness with reference to the declarations of defendant’s against wife made the defendant jury; although and this no exception had been reserved to such testimony. Following 335, Brock v. State. 44 Texas Crim. Rep., and other cases. i$.—Same—State Legal Testimony. must Introduce Where, upon swearing, trial pleaded defendant guilty, was incumbent legal to introduce evidence so that the jury pass upon degree of punishment. Court—Verdict, 3.—Same—Practice District how Returned. Upon swearing, trial for false where the pleaded defendant guilty, it was improper practice permit to write out the verdict assessing the minimum against handing to having juror sign being one it without elected and with- out to retire to consider the verdict. —Same—Charge Guilty. of Court—Plea of Where, upon swearing, trial for false pleaded court, nevertheless incumbent under article Code Crim. Pro cedure, have submitted the law to charge, ain written LYIII. Grim.—33. Yol. Reports. 5.—Same—Legal Guilty. Trial—Plea of Upon for false pleaded guilty, where the defendant lie was *2 law, entitled a legal nevertheless trial under the forms of the and where denied him case must be reversed. from the District Court of Hunt. below before Tried Appeal L. Hon. R. Porter. im- from a two swearing; conviction of
Appeal penalty, years in the prisonment penitentiary,
The states the case.
Sherrill, Hamilton, Mulkey & in this for The defendant appellant. cause, a young, making was indicted for inexperienced country boy, in affidavit a He arrested and a false license. procuring marriage 26, 1909, in October and on October 29 he was jail brought placed trial, and, on for out of with some other jail prisoners, being arraigned a member of called pleaded guilty. Thereupon attorney stand, indictment, which had found the to the witness jury, the grand had and him that defendant’s wife been before the grand proved she and years and testified that was under 18 that she age, license, the defendant before he went after the marriage so informed had seen the affidavit made and that witness as set out in The in substance the indictment. district and verdict, assessing the defendant finding guilty then wrote two in the and handed same years penitentiary, his at and said member to sign a the same. requested to member said and requested, member verdict as jury signed The said clerk and read. charge to the Ho given the same or did not leave the box consult with each other court, the jury other, member the verdict each speak have to do with the' anything selected to same when the court asked if that to assent them except verdict had had The defendant no com- opportunity verdict. was their father, in another county, his who lived and did not with municate counsel before entering plea advice or any legal have advice of some other' on the in prisoners jail. but pleaded immediately conviction, him after his for and employed Counsel new and for trial were duly in arrest of filed in judgment motions relied here for time, grounds reversal up setting overruled, court’s actions in failing which were verdict to rendered permitting charge record, conviction of permitting shown by manner juror hearsay testimony grand to what the over- wife had testified defendant’s for amended motion arrfest defendant’s ruling before this court review. trial, are brought of defendant’s Boyd wife: admitting On question 470, 26 S. W. 1089. Texas Crim. State, Rep., Rep., 33 v. 515 The v. State. 1910.1 in writing: failure to charge On court’s question 4 44; State, Texas State, 4 v. Long Texas Crim. Thompson App., v. State, 359; Crim. Williams 81; 5 Texas App., Crim. Richarte v. App., State, 30 Crim. State, 409; v. Texas 18 Texas Crim. McLain App., v. State, Texas Crim. Haynie App., W. v. 3 Rep., 1092; 17 S. App., State, Crim. 223; Parchman v. 3 Texas App., State, On verdict: Josef Crim. making up Texas State, 251; 850; Darter v. 44 W. Rep., Cyc., S. Rep., Assistant Mobley, Attorney-General, John A. Appellant was Presiding
DAVIDSON, awarded a Judge. term two in the of false swearing. oh penitentiary He was into court entered a brought guilty. judg- *3 ment contains recitals under article 554 of the Code of Criminal Procedure. The statement is as of facts follows: complete, Scott, State,
Bill witness for the testified as “I follows: am a member of the present jury, present was the grand grand jury defendant, room when case H. Woodall, the the against G. was inves- Woodall, of tigated. Hessie the wife was before the grand father, Martin, her Mr. jury; also before was the and I grand jury, heard their Prom their testimony. testimony Hessie under the age of eighteen years. My recollection stated that they she was about years fifteen of stated the that age. grand jury She she was not old, eighteen years fifteen, but was a little over and she said she had so informed the defendant before he procured marriage the license. There were also other witnesses before the grand jury. I saw the affidavit by made defendant. tó was was the effect that Hessie Martin of jvas years by made the eighteen age—was defendant before Arnold,, Court, S. L. deputy clerk of the Hunt County Texas. County, “It the agreed above and is a true foregoing and correct statement of all the proved upon cause, facts the of above and that as soon as said witness left the stand the district attorney wrote the verdict herein and handed N. rendered same to Blankenship, a member of as jury, same signed the same read, was to the clerk and and that jury did not retire box, from deliberate in they any manner upon the verdict, speak said nor did the said Blankenship any other member verdict, before he the said nor he signed was elected fore- man of and that the did the said not consult them- among selves, manner, other, or to each speak the case concerning rendered, before the but said verdict verdict was by of said Blankenship upon request attorney, above stated, clerk by they and. the same read after were asked by verdict, if to that they each agreed they court their signified of head.” by assent a nod under above
It will be observed agreed statement of facts that BepoíltS. 516 under evidence against appellant at only attempt introducing Scott, first, statements of Bill and stated grand jury the wife of appellant 15, and that a little over only she was not 18 but was years age, license; the marriage she had informed before he procured so Martin, was also second, appellant, Mr. the father-in-law heard his testimony, and that the witness Scott of the wife of testimony appel from his and the testimony lant, 18 at time years age pro wife was under appellant’s testified that he saw the affidavit the license. He further curing (cid:127) effect state that and the which was 18 The statements of age. wife was under appellant’s here detailed could not used against wife under the circumstances 335; State, Texas Crim. Rep., Spivey her husband. Brock See v. State, Texas Crim. State, 496; 45 Texas Crim. Davis v. Rep., v. there was no 8 Texas Ct. 766. While Rep., exception Rep., Scott, statements of the yet testimony reserved to the witness wife, hearsay, can not be used directly through either for the conviction of the husband in cases predicate here did not involve character. violence towards the wife. The person act of in the Brock supra, directly adjudicated her not be used the State husband against the wife could even For a discussion interpose objection. he did though doctrine to the Brock case. This was reaffirmed in matter we refer believe that a State, Hor do we can be supra. grand juror Spivey statements of witnesses jury hearsay before a delivered used to detail *4 under the circumstances here stated. The testimony body before that witness, offered as a wife, had she been would not have been of the why be the reason her state admissible, would stronger Procedure, Code of Criminal not be used. Our article ments in a a defendant case of felony that: “Where persists provides if of the offense is not absolutely the punishment guilty, in pleading of the to in jury beyond graduate any law and discretion by fixed assess to and evi manner, impaneled punishment, a shall-be jury them to decide False thereupon.” to enable swearing submitted dence affixed it a the minimum graduated punishment, to is an offense course, and the maximum five. Of this two years, being punishment be introduced before evidence must so that jury that means article be in may protected defendant their respective and the the State any the benefit of amelioration ex getting rights, circumstances that tenuation, any aggravating might and the State offense; and it has been that held the commission attend merely and instead of the benefit of mandatory, being statute . to the interest designed protect it is more especially cases of crime com aggravated being by preventing minimum assessment The by punishment. pro- promised 1910.] The administered. fully should be observed
visions this statute of Crim- see Code a collation authorities White’s Annotated For of the course, of evidence Procedure, speaks 525. Of when it inal section means such as would be authorized to go here it evidence legal in mo- that by a here jury. strengthened position been to that had the witnesses appear tion new trial it is made introduced to would have been show evidence brought obtained the license wife inform him before he appellant’s that did therefor, that she of age. the affidavit was 18 years it it is further Again, will noticed when agreed Scott finished his wrote had district out a verdict attorney handed of the to member named jury Blankenship, thus it as foreman. As to and signed, was read signed by box, the clerk. The did not retire from the nor jury jury was any deliberation had them to be; as what their verdict should member speak to in to Blankenship regard signing the verdict before he did it. had not sign been Blankenship elected foreman consultation nor was had themselves among jurymen in to the matter. true that after the regard verdict handed to the clerk the court asked the if they it, This, nodded their heads. agreed they say the least of it, such in irregularity disposition our matters, face of statutes in to these regard ought not to be tolerated. the record makes it Again, apparent court did not give to the Article
charge jury. 'Code Criminal Procedure all cases the provides felony court shall give law case whether asked or not. The were not informed as to what the law of the case was. The court gave them no in- struction and the not as apprised were to what punishment was to false but affixed verdict prepared by the dis- trict with such as he saw include in the verdict.
Without the other of the motion for taking up grounds trial, we are that for the reasons indicated this judgment ought to stand. guilty, pleas not well of not pleas our should be statute looked the trial provisions govern further We are of opinion of criminal cases. has trial provided that character of statute where a legal plea of *5 is entered. guilty indicated,
For the reasons judgment reversed and the cause remanded.
Reversed and remanded. Judge. RAMSEY, to result. I can not and I agree do not the correctness of Brock case. In this concur case appellant a motion trial and he innocence alleging filed Beports. plead guilty through ignorance
been induced to and over-persuasion. be the to into a It should not law man policy entrap plea his life, would and ruin and where there reasonable blight are where showing, there evidences of such haste particularly ease, as exist in this we think the court below glaring irregularities should have aside the to set conviction the end that jus- tice done. If be was indeed could might not, doubtless If have been shown. he was he did not deserve be on adjudged an unadvised imprudent guilty. should be added that Judge Davidson’s follows authori- I however, ties. rest on my concurrence merits prefer, case.
Robert Shoemaker No. 484. March 1910. Decided —Rape—Former Jeopardy—Dismissal—Defective Indictment. Where, upon rape, indictment defective in that it omitted prosecutrix allege to was had been formed between the State and be was not wife of the and the case after had begun motion the State dismissed the trial and the issues no jeopardy former under a new pleaded upon alleging prose- another trial indictment jeopardy was not the wife of the defendant. order that should attach cutrix there must a valid indictment. Acquittal—Former Conviction. 2.—Same—Former plea of a distinction between a former conviction There is requires the conviction must be a valid acquittal; the first former indictment authorized, competent jurisdiction; while second is a court of was obtained in a court of com- acquittal if the regular irregular, whether petent jurisdiction. Witness—Conspiracy. —Same—Evidence—Animus permit not to the defense rape was reversible error Upon trial for with upbraided improper for her conduct show, a prosecutrix that when exposed, by get if her said conduct proposed to even party, she third with her. having intercourse carnal with charging the defendant 4.—Same—Evidence—Document. prosecutrix rape, trial of where Upon age testify as to the issue, a State’s witness permit error to it was reversible original shown that not been report; of a census certain contents existence; secondary evidence. as this Tried below Baylor. Court the District from
Appeal A. P. Dickson. Honorable Jo five imprison- penalty, of rape; from conviction Appeal in the penitentiary. ment states the case.
The opinion Coombes Nugent Bouldin and C. T. Newton T. Holman &