These two courts based their decrees on the ground that defendant had been in possession of the land on which the timber grew, himself, and those under whom he claimed, for more than 7 years, and for more than 20 years claiming, to the boundaries, under deeds purporting to convey an estate in fee, and so had acquired title; that the timber growing on the land was a part thereof, and so title to it was in defendant; that title implied the right to possession; and that complainant's felling the timber and cutting it into sawlogs could not change the title, or impair the right of possession implied from title, and so the logs were the property of the defendant, and he was entitled to their possession. The complainant's opposing theory was that he had acquired possession of the timber by erecting the fence, that the title to the land was not involved, and that his remedy was in replevin, and relied on Lieberman v. Clark, 114 Tenn. 117, 85 S. W. 258, 69 L. R. A. 732. It was held in the case cited that where one's timber is taken from land of which he has actual possession under color of title, he may obtain redress by the writ of replevin by simply proving his right of possession without raising the question of the title to the land on which the timber was standing when it was felled and taken, though it was conceded that sometimes it may be essential to show title to the land in order to show title to the timber which it produced and a right to the possession thereof. showing title he would have done no harm, but only produced more evidence than was necessary to maintain the case. When Lieberman v. Clark was decided, it was believed that the fundamental principle there announced (supported by the great weight of authority; and on this point, also, see note to the same case as reprinted in 69 L. R. A. 732, sub nom. Wheeler v. Clark) would prove very beneficial towards quieting land litigation in the state, for the reasons fully stated in the opinion, and which need not be repeated here. The result has justified the belief we entertained at the time. We should not deem it necessary to refer in so much detail to Lieberman v. Clark, but for the fact that the learned chancellor, who decided the case now before us for review, seems to have ignored that authority, and the learned Court of Civil Appeals used some expressions in its opinion that seem to indicate a misconception of the meaning of that decision. Recurring now to the facts of the present case: It was sufficient, we repeat, to prove that defendant was in actual possession of the land under a writing defining its boundaries, and was claiming to the limits of the boundary at the time the land was invaded, and the timber felled. Such evidence showed possession, and right of possession, of the timber at that time, and that complainant was in the wrong. It was not necessary that defendant should go further and show title. [4] So, in the case before us, if the defend- The chief principle enunciated in Lieberman ant, instead of adopting the plan of "self-v. Clark was that an aggressor could not by help" which he did adopt, had brought re-entering on land occupied by another and plevin for the logs that complainant left on taking timber therefrom force the latter, in the ground, he could have succeeded merely order to obtain redress, to expose his title by showing that he was in the actual posses- to the hazards of litigation. The dangers sion of the land at the time the complainant of such an enterprise are pointed out in the invaded it, and felled the timber, and cut case just referred to. it into logs. That would have made a practical parallel of the case of Lieberman v. Clark. It would not have been necessary for him to go further and show title. True, by However, there is no error in the result reached by the chancellor and the Court of Civil Appeals, and those decrees are affirmed, with costs. COPREW v. STATE. (No. 4937.) (Court of Criminal Appeals of Texas. 13, 1918.) March of the matter and indicated a place where they could be but were not found. In a subsequent statement he seems to have told the truth about where the goods were; at least, 1. CRIMINAL LAW 598(6)—CONTINUANCE- they were found where he informed the offiDILIGENCE REQUIRED. Where an indictment was returned in September and process was not asked for a known witness until six days before the trial in November, there was not sufficient diligence to entitle defendant to a continuance. cers they had been secreted. The evidence is uncontroverted that the saloon was burgla rized and whisky taken in considerable quantity; that appellant and Corry Tippie were acting together; and that appellant employed 2. CRIMINAL LAW 597(3)-CONTINUANCE- a chauffeur with a machine to transport the ABSENT WITNESS. Where evidence was that defendant assisted goods from where they were taken, or in another in a burglary by hauling off and conceal- front of the saloon from which they were ing the goods, there was no error in refusing a taken, to a certain designated point in the continuance on the ground that the other, if city of Dallas. Tippie and appellant were present, would testify that he committed the acting together, and appellant paid the fee burglary. 41(1)-SUFFICIENCY Of Evifor the transportation of the goods, and then a further fee for carrying the goods from the place where they were deposited to his (appellant's) home, amounting to $2. Had Tip 3. BURGLARY DENCE. Evidence held sufficient to support a conviction of burglary. Appeal from Criminal District Court, Dal- pie been present and testified that he entered las County; C. A. Pippen, Judge. Henry Coprew was convicted of burglary, and he appeals. Affirmed. John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of burglary of a saloon, his punishment being assessed at four years' confinement in the penitentiary. the saloon and stole the whisky, under all [3] The evidence is unquestionably sufficient to support the conviction, and appellant seems to have had a fair trial so far as this record shows. The judgment will be affirmed. PRUITT V. STATE. (No. 4871.) (Court of Criminal Appeals of Texas. March 13, 1918.) 1. BANKS AND BANKING 21 - DRAWING CHECK WITHOUT FUNDS "SWINDLING." Under Pen. Code 1911, arts. 1421, 1422, defining the offense of "swindling," it is essential to prove that one drawing a check on a bank, not only had no funds in the bank, but also that he had no good reason to believe that the check would be paid. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Swindling.] [1, 2] There was a lot of whisky taken at the time, of the brand of Hill & Hill and Blue Ribbon. Appellant moved for a continuance on account of the absence of Corry Tippie. The indictment was returned in September, the case tried in November, and process was asked for five or six days prior to the trial. If Tippie would testify as indicated in the application, it was thoroughly known to appellant from the time of the burglary under the showing made by the application itself as well as by the evidence. The diligence is hardly sufficient, but an important question justifying the court in refusing the continuance is found in the fact that Tippie is alleged in the continuance itself to have entered the burglarized house and committed the theft, and that he would so testify on the trial if present. Whether he would so testify or not would be of no importance to defendant. His absence from Dallas county, as alleged in the application, at the time and under the circumstances would tend to indicate that he was avoiding criminal prosecution. But viewing the action of the court in the light of the evidence in the record from the standpoint of the motion for new trial, we are of opinion the court did not commit error. The facts may be considered, in the main, circumstantial in their nature; yet there is a confession or a statement of appellant as to where the stolen goods could be found, and in pursuance to Failure of indictment under Pen. Code 1911, his statement they were found at the place name of the person to whom the false represenarts. 1421, 1422, for swindling, to state the indicated. He at first denied any knowledge | tation was made, cannot be questioned after For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. BANKS AND BANKING 21 - DRAWING CHECKS WITHOUT FUNDS-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to warrant conviction of swindling by drawing check with "no good reason to believe that such check will be paid," under Pen. Code 1911, arts. 1421, 1422. 3. BANKS AND BANKING 21-REPRESENTING CHECK TO BE GOOD-INDICTMENT. An indictment under Pen. Code 1911, arts. 1421, 1422, for swindling a corporation by drawing a check, should state the name of the particular person to whom the false representation 4. CRIMINAL Law 970(7)—MOTIONS IN ARwas made. REST OF JUDGMENT-DEFECTS IN INDICT MENT. verdict, under Vernon's Ann. Code Cr. Proc. I would be presented, sufficient funds to pay 1916, art. 849, relating to motions in arrest of same, and no good reason to believe that such judgment. check will be paid. Appeal from District Court, Wood County; J. R. Warren, Judge. Marvin Pruitt was convicted of swindling, and he appeals. Reversed and remanded. C. W. Vickery and B. F. Cathey, both of Quitman, and Simpson, Lasseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The indictment was for swindling. The offense as alleged was based upon the fact that appellant defrauded the First National Bank of Hawkins, a corporation, by obtaining from it a sum of money on a check drawn by him on the Continental State Bank of Big Sandy, Tex. It was charged that he represented that he had the right and authority to draw the check, that it would be a good and valid check, and would be paid by the Continental State Bank when presented in the ordinary course of business. This happened about April 15, 1915; the indictment was returned December 7, 1916. Appellant was a merchant, and operated a feed store at Hawkins, and kept an account at both the banks named. During his business operation covering several years he had drawn a great many checks on the bank at Big Sandy which had been cashed by the bank at Hawkins. Both of the bankers had permitted him to carry an overdraft, and on the occasion in question he was overdrawn with the bank at Big Sandy. He desired to pay for a car load of hay, and sought credit to the extent of about $154 for that purpose of the bank at Hawkins, having his conversation with one of the men who operated it in the absence of the other. The bank declining, he went, he says to Big Sandy, and arranged there with Mr. Perdue, the manager of the bank, to pay the check, and, acting upon his statement that he would pay it, he drew and negotiated the check, using the money for the purpose stated. Subsequently he says that the banker at Hawkins, who was absent when he first applied for the loan, returned, and told him that he would advance the money; that it was unnecessary to have made the arrangement at Big Sandy. This is denied by the banker at Hawkins. Appellant says that, acting upon this assurance, he told the banker at Big Sandy it would not be necessary for him to pay the check. The check was not paid by the bank at Big Sandy, but there is no other testimony as to the rea son. Articles 1421 and 1422, P. C., define the offense of swindling. The latter article enumerates certain acts which will constitute swindling, one of these subdivisions specifying obtaining money on a check on any bank when he has not, at the time of giving or drawing such check, or at the time when in [1, 2] To convict appellant it was essential that the state prove that at the time the check in question was drawn appellant not only had no funds at the bank at Big Sandy on which it was drawn, but that he had at that time no good reason to believe that the check would be paid. The absence of good reason to believe that the check would be paid was an element of the offense. The burden was on the state to prove this negative allegation. It was a part of the state's case. It called none of the officers or others connected with the bank at Big Sandy to prove that appellant had no good reason to believe his check would be paid. It relied apparently upon the fact that appellant had no money in the bank at Big Sandy, and that the check was not paid. He represented that he had the right to draw the check. The case of Moore v. State, 20 Tex. App. 233, is in point. Moore got money from a person named in the indictment, representing that he had deposited money in a certain bank at Dallas. The state proved by the cashier of the bank that they had bookkeepers, and kept a book in which all deposits were entered, or supposed to be entered, in the regular course of business, and that this book showed no deposit by appellant, and that appellant had never, in the knowledge of the witness, made any deposit. There were other employés of the bank who had authority to receive deposits, and they were not called as witnesses. The court held this evidence insufficient, stating that the law presumes in favor of the innocence of the defendant that he stated the truth when he represented that he had money on deposit in the bank sufficient to pay the check. Presumption of innocence is not overthrown by the evidence on the part of the state establishing prima facie that he had no such deposit. The presumption of innocence must be overcome by evidence that would establish his guilt beyond a reasonable doubt. [3] The sufficiency of this indictment is challenged on the ground that it should name the persons to whom representations were made. We have failed to find where the exact point has been passed on in this state. Mr. Bishop, in his work entitled New Criminal Procedure, vol. 3, p. 1342, setting out the requisites of an indictment in this character of prosecution, states that the name of the person defrauded and that of the one to whom the pretense is made should be averred. In Washington v. State, 41 Tex. 583, the Supreme Court, in making a quotation, says: "It is stated by Greenleaf, as a general principle in indictments, 'that the names of the persons injured, and of all others whose existence is legally essential to the charge, must be set forth, if known, and that it is material that they be precisely proved as laid.' 3 Greenl. son. An essential element of allegation and proof in swindling is the fraudulent representation. This must be made to some perIt cannot be made to an artificial person, such as a corporation, save through some officer or agent who is a natural person. This being true, it would seem that the rules of pleading would require that the name of the person to whom the representation was made should be alleged. It is a fact necessary in proof. It serves to give the accused notice of the facts of the charge against him. It is elementary that the name of the injured party must be stated, and it has been held that when the injured party is a corporation, that fact must be stated. Nasets v. State, 32 S. W. 698; Spurlock v. State, 45 Tex. Cr. R. 284, 77 S. W. 447. [4] Our courts have held from an early date that in charging swindling there should be a clear and distinct statement of the facts relied on. State v. Baggerly, 21 Tex. 757, and numerous cases listed in Vernon's P. C. p. 912. We believe the correct rule to be that, where an owner or person injured is a corporation, the compliance with the law requires the name of the person to whom the representation is made be set out, if the name of the person is known. We do not believe the defect in the indictment is such as may be raised after verdict. See Vernon's C. C. P. art. 849, and cases cited, pp. 844, 845. Believing the evidence to be insufficient, it is ordered that the judgment of the lower court be reversed, and the cause remanded. 1. WITNESSES ~380(5)—IMPEACHMENT-PRIOR STATEMENTS. A witness can be impeached by prior statements only when his testimony is actually prej; udicial to the case of the party calling him, and such party is surprised, and so not where his testimony is neither favorable nor prejudicial. 2. CRIMINAL LAW 423(1)-EVIDENCE-DECLARATIONS OF COCONSPIRATOR. Statements of another person prior to the commission of the offense are admissible; they being made under circumstances tending to show that he and defendant were coconspira tors. person" is improper; the charge should conform to the indictment. Appeal from District Court, Motley County; J. H. Milam, Judge. C. I. Cannon was convicted of poisoning a reservoir with intent to kill and injure, and appeals. Reversed and remanded. Bouldin & Surles, of Matador, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. The appellant was charged with poisoning a reservoir of water with intent to kill and injure persons to the grand jurors unknown, and in another count with intent to injure and kill W. W. Waldrup. His trial resulted in a conviction and sentence to confinement in the state penitentiary for a period of four years. [1] The witness Edwards, while a convict in the penitentiary, made and swore to a statement in writing containing facts incriminating appellant. The state introduced him as a witness, and he failed to give any testimony either favorable or derogatory to the state. He was then required, over the objection of the appellant, to identify the written statement and to testify as to its contents and that he made it in the absence of appellant and while he was confined in the penitentiary. He added on cross-examination that it was made for the purpose of securing his release, and that it was not true. This evidence was hearsay. The only rule of law of which we are conversant which would permit testimony of this character to be introduced would be occasioned by circumstances authorizing the party introducing the witness to impeach him by showing he had made contradictory statements. This can only be done when the witness gives testimony which is actually prejudicial to the case of the party offering him, and when such party is surprised by his adverse testimony. Wharton's Criminal Evidence, § 484a, p. 1003, vol. 1; Bailey v. State, 37 Tex. Cr. R. 579, 40 S. W. 281; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Skeen v. State, 51 Tex. Cr. R. 39, 100 S. W. 770. In Branch's Ann. P. C. p. 95, § 164, there are collated a great number of cases supporting the rule stated. [2] We think the objection to the part of the testimony of R. H. Howell to statements which he claims were made to him by W. R. Tolbert prior to the time the offense was committed was not well taken. The alleged statements were made under circumstances tending to show that Tolbert and appellant were coconspirators. [3] The testimony of the witness Howell relating to alleged conversations with Tolbert subsequent to the commission of the offense, we think, were obnoxious to the rule which rejects the declaration of a coconspirator made in the absence of the accused sub sequent to the completion of the crime to which the conspiracy related. Draper v. State, 22 Tex. 400, and other cases listed in Branch's P. C. p. 354, § 695. There are exceptions to this rule, ad.nitting declarations which are res gestæ or made by the coconspirator while in possession of the fruits of the crime. Eggleston v. State, 59 Tex. Cr. R. 551, 128 S. W. 1105, and other cases cited in Branch's Ann. P. C. § 695, supra. The facts involved do not, in our opinion, come within the exception. was not harmed by exclusion of more evidence on such matter. 4. HOMICIDE 300(2) - SELF-DEFENSE-IN STRUCTIONS. It was not error to refuse to specially ceased was interested in, and lived at a house IFICATION. 131(3)-EXAMINATION-Disqual Where defendant lived in house of ill fame with his wife, it was proper to ask the jurors if such fact would influence them, as a basis for a peremptory challenge, but not for disqualification. 7. On Motion for Rehearing. JURY 131(15) — EXAMINATION - HYPO- The trial court in its discretion may refuse to allow jurors to be asked questions in hypothetical form. [4] The court submitted to the jury two counts of the indictment only, namely, that charging the poisoning with intent to kill Waldrup, and that charging poisoning with intent to kill some person to the grand jurors unknown. The matter was submitted to the jury in a paragraph authorizing conviction if the poisoning was to "injure or kill W. W. Waldrup or any other person." Complaint is made of that part charging "any other person." Our law (article 456, C. C. P.) requires the name of the person intended to be injured to be set out, if known, but if unknown to the grand jurors that fact may be alleged, but it must be proved. Vernon's C. C. P. p. 202; Brewer v. State, 18 Tex. App. 456. We do not think that a charge authorizing the jury to convict if the intention was to kill "any other person" would lant. E. B. Hendricks, Asst. Atty. Gen., for Mays & Mays, of Ft. Worth, for appelbe justified under this allegation. The charge should conform to the indictment, namely, instruct that the conviction would be authorized if the act was done with the intent to injure some person to the grand jurors unknown. Such a charge, however, should not be given unless there was proof of the fact. Because of the errors pointed out, the judgment of the lower court is reversed, and the cause remanded. Appeal from District Court, Tarrant County; R. E. L. Roy, Judge. Seibert Houston was convicted of manslaughter, and he appeals. Affirmed. the State. the murder of Sam Brown, convicted of manMORROW, J. Appellant was indicted for slaughter, and his punishment assessed at five years' confinement in the state peniten tiary. Appellant killed deceased by stabbing him with a knife. The homicide took place at a house of ill fame kept by a woman named Miller, at which house appellant and his wife at the time resided. The state's theory and evidence was that appellant was intoxicated, and attacked the deceased without provocation. Appellant claimed to have acted in self-defense. [1] One of the witnesses, May Stokes, was a common prostitute and an inmate of the house at which the homicide took place. Appellant's bill of exceptions complains of the refusal of the court to allow him on crossexamination to show by her that she had been arrested for drunkenness several times in the preceding six months. The offer was not to prove that she was drunk at the time of the homicide. This would have been admissible as testing her knowledge of the facts. Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465. Proof, however, that she had been arrested for drunkenness on other occasions would be proof that she was charged with a misdemeanor not involving moral turpitude, |