(248 S.W.)

or exercising over them control of any character, or asserting ownership therein. Lemon v. State, 89 Tex. Cr. R. 361, 231 S. W. 388, and authorities therein cited. We rega▾ 1 the facts upon which this conviction rests to be even weaker than those recited in Moore's Case, 91 Tex. Cr. R. 46, 237 S. W. 258. It appears from the testimony that a Mr. Polk had a room at Mrs. Russell's; that at some hour Sunday night he came to the house. He was not used as a witness, and no effort was made to account for his movements during the night. We do not mean to intimate that he was connected in any way with the burglary, but mention this to point out the weakness of the state's case. There seems to be no controversy about his presence in the house where the stolen goods were found, whereas it is a sharply drawn issue whether appellant was there until taken there by the officers under arrest. Every circumstance which the state could claim to be in any wise even suspicious is explained in a manner consistent with appellant's innocence. The facts to our mind are not consistent with each other, and the circumstances are not of a conclusive nature producing a reasonable certainty that appellant, and no other person, committed the burglary,

only upon Sugs' information that he re- [ shown to be in possession of the stolen goods, ported the matter. He further testified that, after Rogers left him as they walked up the street together, he (appellant) walked on to the corner and talked to some boys in front of the drug store for a while, and gives an account in detail of his movements until the time he went to the Main Hotel; that while he, Harris, Sugs, and Wilkinson were playing dominoes at the hotel appellant's father came and called him out some 12 or 15 steps away from the hotel porch, and there had a conversation not lasting over 20 minutes, when he returned and resumed the game; that he remained at the hotel until about 3 or 4 o'clock in the morning, when he and Buck Wilkinson went to the restaurant to get something to eat, and from there he went to the train to meet Barber; that after leaving Barber at the train appellant came back to town; that Anderson, the deputy sheriff, asked him to go with him after some witnesses, saying he would be back in a little while. Appellant denied that he went to his sister's (Mrs. Russell's) at any time that morning. He says Anderson told him about the burglary, and that he told Anderson when they got back to town he would make some inquiry, and if he could find out anything about it he would report the matter; that as they were leaving town he saw Chapman and told him practically the same thing; that Anderson found the witnesses had moved, and instead of getting back to town within a short time, as they had expected, it was somewhere in the neighborhood of 3 o'clock in the afternoon before they got back; that on the way back the sheriff met them and arrested appellant; that they went to Mrs. Russell's house, which was the first time he had been there that day, and had not been there the night before; that he had been staying with Buck Wilkinson at the hotel about 3 weeks prior to that time. Appellant denied having any knowledge that the stolen goods were at his sister's house, or how they came there. He also denied that he was in the restaurant on the Sunday night in question with a rope in his hand, as testified to by one of the witnesses for the state. He said he did sometimes help handle cattle, and might at some other time have been in there with a rope; that he had nothing to do with the burglary, and knew nothing about it until he was informed of it by Anderson on Monday morning when he started with him after the wit

nesses.

We have given the substance of all the evidence, both for the state and appellant. We are of opinion it falls short of meeting the requirements of the law before a conviction can be sustained. Appellant was never 248 S.W.-44

[2] If this case should be tried again the statements of Chapman that Mrs. Russell told him over the phone that appellant was at her house and asleep should be excluded as hearsay. As we understand the record Chapman testified to this on direct examination. The presence of appellant at her house was controverted, and hearsay testimony on the issue was harmful.

The character of examination of the witness Anderson by the district attorney should not occur on another trial. He was a state's witness. He denied that appellant had made any criminative statement to him. The examination could not help but impress the jury that the witness was either withholding evidence beneficial to the state, or that the attorney believed this to be a fact. If the attorney was surprised at Anderson's evidence, he cannot so claim on another trial. He was not giving damaging evidence against the state, but refusing to give testimony in its favor.

We do not think it was necessary to go into all the details of the alleged conversation between appellant and his father at the hotel, but, it having occurred under peculiar circumstances and at an unusual hour, the subject of conversation should be revealed if thereby verity would be added in establishing that the conversation occurred.

The judgment must be reversed, and the cause remanded for retrial.

WHITE v. STATE. (No. 6920.) (Court of Criminal Appeals of Texas. Feb. 28, 1923.)

1. Criminal law 522 (3) - Confessions obtained by unlawful assault not voluntary.

Confessions obtained by unlawful assault upon accused are not admissible under Code Cr. Proc. 1911, art. 810, permitting introduction of confessions of one accused of crime which are voluntary.

2. Witnesses 77-Allowing 10 year old negro boy to testify held not abuse of discretion.

That the trial court in an arson prosecution permitted a 10 year old negro boy to testify to declarations of accused, after the witness on his voir dire had first said he did not know what would be done to him if he told a lie, but that he would be punished, and saying on his cross-examination that he was not acquainted with the obligation of an oath and did not know what an oath meant, held not an abuse of discretion.

3. Criminal law 763, 764(17)—Instruction in arson case held erroneous as on weight of

evidence.

In a prosecution of an 18 year old negro boy for arson, an instruction that "in this case the court had introduced evidence tending to prove the theft of a turkey and a chicken on or about the time the house was alleged to have been burned," and that such testimony could be considered only for the purpose of proving the guilt of accused of the offense charged by circumstances connected with the theft, if any,

held erroneous as being on the weight of the

evidence.

friendly talk about the buying of a shirt, and the appellant left the house. According to her testimony, he came back to talk about a settlement between them and wanted to wear the shirt. Fannie Dunn testified that after the house was burned, she saw tracks in the sand between the orchard and the potato patch. The person making the tracks apparently had stepped over the wire fence and came to the hen house, walked down the potato row to the peanut house, and then to the cowpen and into the road. The tracks described by her and other witnesses for the state were sock-feet tracks. There was a hole in the sock, about two inches across, which made an impression in the sand. The tracks went by the "gooberhouse" and passed the hen house and down the road to a bridge across a creek about a half mile distant. Beyond the bridge, there were no sock-feet tracks, but there were shoe tracks. The shoe tracks were traced to the home of the witness McCoy, where the appellant was found.

The officers who arrested the appellant forced him to put his sock-foot in the tracks found at the Dunn home, and according to the state's witnesses, the foot fit the tracks. The witnesses were unable to say whether the tracks were fresh or old tracks, except that they did not look very old.

Appellant testified that he was at McCoy's house at the time of the fire, and his testimony upon this subject was supported by several witnesses.

One witness for the state testified that he

had spent the night on which the fire oc

curred at the home of a neighbor of the wit

4. Criminal law 318-In cases of circum-ness McCoy. Quoting him, he said:
stantial evidence, inferences from evidence in
state's possession, but not introduced, are in
favor of accused.

In a case of circumstantial evidence, infer

ences from evidence not introduced which are

in the possession of the state are in favor of and not against accused.

"I got up about sunup the morning after the peanut house was burned. When I got up, I seen Mr. Felix's wife and Felix, and Mr. Cap McCoy and his wife, and Bessie Lee and Robert White. Robert, was at Cap McCoy's house. I did not talk to Robert. He just spoke to me; he told us, 'Howdy,' and asked where I was

Appeal from District Court, Harrison going. I told him I was going home, and he County; P. O. Beard, Judge.

Robert White was convicted of arson, and he appeals. Reversed and remanded. Myron G. Blalock and Y. D. Harrison, both of Marshall, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

MORROW, P. J. Conviction is for arson; punishment fixed at confinement in the penitentiary for a period of five years.

told me that if I seen anybody asking for him, 'don't tell them you saw me.'"

The witness said further that he heard the appellant say to Cap McCoy that, "if I had got the turkey, wouldn't eat him now, as Miss Fannie had been feeding her chickens nux vomit" (nux vomica) for hawks. The testimony of this witness was controverted by appellant and other persons present at the McCoy home.

There was some evidence that the fire was caused by spontaneous combustion.

After appellant was arrested by officers, he was struck by one of them in the mouth. The officer said:

A "goober-house" belonging to Fannie Dunn was burned. The fire occurred at night, and it was not discovered until the following day. Appellant, a negro boy about 18 years of age, had previously been living "I think I hit him with my fist once and slapat the home of Fannie Dunn; but a short ped him once. I struck him in the mouth as time antecedent to the fire they had some un-hard as I could hit him."

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(248 S.W.)

In instructing the jury, the court used this language:

This officer also testified that the appel- S. W. 669; Munger v. State, 57 Tex. Cr. R. lant was laid across a log; that his clothes 384. 122 S. W. 874. were removed, and that he was whipped by the officers with a switch, which one of them described as being "about the size of my little finger or a little larger than my little finger. It was as big as my biggest finger and was green. I didn't count the times I hit Robert."

"In this case the court had introduced evi

dence tending to prove the theft of a turkey and a chicken on or about the time the house was alleged to have been burned. You are instructed you can only consider such testimony [1] In addition to whipping the appellant, for the purpose for which it was admitted, that the officers told him that, if he did not con- is, to prove the guilt of the accused of the offess, they would take him to town and put fense charged by the circumstances connected him in the "shocking machine." They with the theft, if any, and you will consider it forced him to put his feet in the tracks. The for no other purpose."

[3] This charge was made the subject of

statute, article 810 of the Criminal Code, permits the introduction of the confession of one accused of crime which is "voluntary." an exception because it was on the weight Both the Legislature and the courts have of the evidence. It is couched in language been alert to see that the confession was which has heretofore been so characterized. voluntary. We presume that the efforts of See Leach v. State, 46 Tex. Cr. R. 509, 81 S. the officers in the instant case revealed by W. 733; Reese v. State, 44 Tex. Cr. R. 34, 68 the testimony was directed to securing such S. W. 283; Hollar v. State (Tex. Cr. App.) a confession. In these efforts, they were un- 73 S. W. 961; Cortez v. State (Tex. Cr. App.) successful, though doubtless proof of them 74 S. W. 907; Cavaness v. State, 45 Tex. Cr. impressed the jury that the officers believed R. 209, 74 S. W. 908; Gustamente v. State, appellant guilty. According to their own 81 Tex. Cr. R. 640, 197 S. W. 999; Reese v. testimony, they made an assault which was State (Tex. Cr. App.) 70 S. W. 424. unlawful and accompanied by no mitigating The evidence that appellant stole a chickor justifying circumstances. Confessions ob-en and a turkey is meager and inconclusive. tained under such conditions are violative of They were not found in appellant's possesthe statute and of the rights of the ac- sion. Fannie Dunn said that she lost a cused. Zeal on the part of the officers should never lead them to use violence to procure a confession which the law demands shall be voluntary. See Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177; Bozeman v. State, 85 Tex. Cr. R. 653, 215 S. W. 319; Robertson v. State, 81 Tex. Cr. R. 378, 195 S. W. 602, 6 A. L. R. 853; Finks v. State, 84 Tex. Cr. R. 536, 209 S. W. 154.

The witness who testified to the alleged declarations of the appellant was a 10 year old negro boy, whose qualification as a witness was challenged upon the ground that he had insufficient knowledge of the nature of an oath. On his voir dire, he said first that he did not know what would be done to him if he told a lie, but that he would be punished. On his cross-examination he said that he was not acquainted with the obligation of an oath, and did not know what an oath meant.

chicken and a turkey. She did not describe them nor state the kind of feathers they wore. A witness testified that every once in a while he saw some feathers between the house of Fannie Dunn and the bridge, some of which were black and other Plymouth Rock; that he also saw feathers about the chicken house. There was testimony that there were feathers about the premises of McCoy; that feathers were found about the barnyard and upon the road, but in the absence of some definite identification of the feathers with the lost fowls, this evidence, considered alone, is of little weight.

[4] The evidence of appellant's guilt is not so conclusive as to render harmless the charge mentioned. Circumstances alone were relied upon. The evidence touching the sock-foot tracks about the premises and in the road going as far as the bridge is not altogether inconsistent with the innocence of [2] The bill presenting this question for the accused. He had been an inmate of the review consists, in the main, of questions home up to one or two days before the fire and answers, and we think is hardly suf- occurred, and he had walked about the ficient to require consideration. Rylee v. premises. Whether in his sock-feet or State, 90 Tex. Cr. R. 482, 236 S. W. 744. otherwise is not disclosed; whether the Suffice it to say that under the rule prevail-tracks were fresh or old is not shown. The ing in this state, touching the competency of sandy character of the ground, according to a child, we express the opinion that in ad- some of the testimony, rendered it difficult mitting the testimony of the witness, the dis- to identify the tracks. Assuming, however, cretion vested in the trial court was not that they were his tracks, there is an absence abused. See Branch's Ann, Tex. Penal Code, of evidence of tracks coming to the premises. § 1771, and cases listed; also, Ake v. State, The person who made those found was going 6 Tex. App. 402, 32 Am. Rep. 586; Mur-away, and according to the theory of the phy v. State, 36 Tex. Cr. R. 29, 35 S. W. 174; state, was going to the home of Cap McCoy, McCormick v. State, 52 Tex. Cr. R. 494, 108 where the appellant was found. He went

from the home of Fannie Dunn to that of Cap McCoy only a short time before the fire. The person who made the sock-foot tracks made that character of tracks no further than the

3. Homicide 166(2)-Evidence of defendant's statements shortly before killing held pertinent as bearing on cause.

dren to pick up a rock and knock deceased's children in the head, was pertinent to the

state's contention.

4. Criminal law 982-State may show applicant for suspended sentence to be of bad repute.

Where defendant in a murder prosecution filed an application for suspended sentence and had formerly lived in another county, the state could properly show that while there his citizen was bad. general reputation as a peaceable law-abiding

In a murder prosecution where defendant bridge, which was a half mile from the home claimed deceased had insulted his wife, and of Fannie Dunn, and. as we understand the about because of a quarrel between defendthe state contended the killing was brought record, about a quarter of a mile from that of ant's and deceased's children, permitting witCap McCoy. There were tracks made by ness to state that on an occasion, shortly before some one who was shod from the bridge to the killing, she heard defendant tell his chilthe home of McCoy. Appellant, when arrested, had on a pair of shoes. Upon the subject of a comparison of the shoes that appellant was wearing with the tracks which were made by the person shod and going from the bridge to McCoy's home, the record is silent. The state's witnesses were in possession of the shoes and of knowledge of the tracks. Whether the evidence would have been favorable to the appellant or not is left in doubt. In a case of circumstantial evidence, inferences from evidence not introduced which are in the possession of the state are in favor of and not against the accused. See Parish v. State, 85 Tex. Cr. R. 75, 209 S. W. 678. Footprints, when associated with other incriminating circumstances, are often impor-ory of the state was that the killing was caused In a prosecution for murder where the thetant elements in a case of circumstantial evi- by a quarrel between defendant's and dedence. Finch v. State, 89 Tex. Cr. R. 367, 232 S. W. 528. But when not so associated, they have often been deemed inadequate to identify the accused. See Warren v. State, 52 Tex. Cr. R. 218, 106 S. W. 132; Gill v. State, 36 Tex. Cr. R. 594, 38 S. W. 190.

Taking into account the weakness in the evidence of guilt, the charge of the court to which we have adverted is deemed of a nature calculated to injure the rights of the appellant.

From what has been said, it follows that in the opinion of the court the judgment should be reversed, and the cause remanded, and this is ordered.

SHIRLEY v. STATE. (No. 6909.)

5. Homicide 309 (6)-Issue of manslaughter should have been submitted on theory of defense untrammeled by connection with other conditions.

ceased's children, and defense claimed that deceased had insulted defendant's wife and that the killing occurred at a meeting shortly thereafter, an instruction on the law of manslaughdefense, untrammeled by connection with other ter that did not submit defendant's theory of conditions, was error.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge. J. G. Shirley was convicted of murder, and he appeals. Reversed and remanded.

McLean, Scott & McLean and Sam. R. Sayers, all of Fort Worth, for appellant.

Jesse M. Brown, Criminal Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J. Appellant was tried under an indictment charging him with the murder of one Robert Thompson; conviction follow

(Court of Criminal Appeals of Texas. Feb. 28, ed, with punishment assessed at 10 years'

1923.)

1. Criminal law 1091 (11)-Bills of exceptions should not consist of questions and an

swers.

Bills of exceptions, consisting of questions and answers only, will not be considered.

2. Homicide 338 (2)-Statements of witness as to reason for deceased being in his store just before meeting defendant held not to affect plea of self-defense.

In a murder prosecution, statement of witness that, when deceased came into his store where the killing occurred, he "ordered some meat for his lunch that night," objected to because not made in defendant's presence, held not to affect the plea of self-defense.

confinement in the penitentiary.

Shirley and Thompson lived across the street from one another in the city of Fort Worth. Late in the afternoon of the day left his home and went to a little store loupon which the homicide occurred, Thompson cated near by, passed through the store to the rear, and asked for some meat. Thompson had not been there more than a minute and was standing by the counter waiting for the butcher to cut the meat for him, when Shirley walked into the store and, approaching Thompson, said, "You s―n of a bh,” and immediately stabbed him with a knife. They then clinched, and Thompson secured a pistol which was lying on the counter near

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