ed the confession will not be reviewed in the ab- 3. CRIMINAL LAW 1093-APPEAL AND ERsence of a bill of exceptions. Appeal from District Court, Morris County; J. A. Ward, Judge. Abbie Lewis was convicted of murder, and he appeals. Affirmed. ROR-BILLS OF EXCEPTION. tion reciting that a witness was asked if it was In a prosecution for incest, a bill of excepnot the practice for children to adopt the name of their stepfather, and that he would have answered in the negative, was too indefinite for consideration. E. B. Hendricks, Asst. Atty. Gen., for the 4. CRIMINAL LAW 1093-APPEAL AND ERState. DAVIDSON, P. J. Appellant was convicted of murder; his punishment being assessed at 50 years' confinement in the penitentiary. [1] He failed to reserve exceptions to the charge of the court in any particular. Error is alleged on the part of the court in refusing to continue the case. It is sufficient answer to this to state that a bill of exceptions was not reserved, therefore that matter is not reviewable. [2] Error is also alleged because the court permitted the state to offer in evidence a written instrument purporting to be the confession of appellant in writing made to one of the counsel for the state who was assisting the district attorney in prosecuting defendant, and in stating, in this connection, to the jury: "Defendant signed this confession; he is sitting here now; if he did not sign it, why didn't he get on the witness stand and testify that he did not sign it?" ROR-BILLS OF EXCEPTION. In a prosecution for incest, a bill of exception that a witness had testified that her daughter disappeared in a certain county and could not be found was insufficient as being too indefinite. On Motion for Rehearing. 5. INCEST 16 - INSTRUCTIONS-RELATIONSHIP OF PARTIES. In a prosecution for incest it was error to submit the relationship of niece; there being in view of statute defining the crime which evidence that the relationship was half-niece, makes a distinction between niece and halfniece. Appeal from District Court, Titus County; J. A. Ward, Judge. Henry Griffin was convicted of incest, and he appeals. Reversed and remanded. I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. [1] Incest was charg ed, the basis of which was that appellant This is a ground of the motion for new and the girl with whom the incestuous intrial, and is not verified by a bill of excep- tercourse is charged to have occurred were tions. In order to bring matters of this sort uncle and niece. The court charged the jury in review on appeal they may be properly that, if they believed this relationship existverified, otherwise they cannot be reviewed. ed, it would be sufficient within the statute The grounds of the motion do not allege the of incest to prohibit carnal knowledge befact that appellant did not take the witness tween parties. This is a matter of law unstand. The purported confession is not set der the statute, and the court was not in erout as a part of the grounds of the motion ror in thus instructing the jury. The court for new trial. We would presume, in the did not assume nor charge the jury that the absence of exceptions properly verified, that facts existed. He simply charged the jury there was no error in admitting the confes-that, if the facts did exist, as a matter of sion, nor in the remarks of counsel in conlaw this would bring the parties within the nection with it. statutory inhibition. The judgment will be affirmed. PRENDERGAST, J., absent. [2] There are some bills of exception which are too indefinite for consideration. Bill No. 1, for instance, recites that the court permitted the witness G. W. Childress to testify that defendant has always been called Joe Griffin's son. "I have known him ever since he was a year or two old, and he was then wearing the name Dec. 5, of Griffin, and he was always known as Joe Griffin's son." GRIFFIN v. STATE. (No. 4733.) (Court of Criminal Appeals of Texas. 1917. On Motion for Rehearing, March 20, 1918.) 1. CRIMINAL LAW 761(6)-INSTRUCTIONS- the trial of the case is not stated. have been entirely admissible. It was evidence from a family relation who knew all the facts. Childress was related to these parties, as shown by the facts, and had In a prosecution for incest, a charge that if the jury believed that the parties were uncle and niece they would be within the statute was not erroneous, since the judge did not assume or charge the jury as to the existence of facts. 2. CRIMINAL LAW 1093-APPEAL AND ER-known them practically all their lives, and ROR-BILLS OF EXCEPTION. In a prosecution for incest, a bill of exception reciting that the court permitted a witness to testify that defendant had always been called a certain person's son was insufficient as being too indefinite. testified as did other witnesses to facts which showed the relationship between the parties as charged in the indictment. [3] Another bill recites that this same witness Childress was asked by appellant on cross-examination if it was not a practice for children to adopt the name of their stepfather. Witness would have answered in the negative had he been permitted to answer, but the state objected and the court sustained the objection and a reply was not elicited. What was the object and purpose of this, or what effect it would have, is not stated, except the general proposition that it was in rebuttal to witnesses' testimony that defendant had gone by the name of Griffin. Had the witness answered it would have been in the negative, and could not have been of any advantage, so far as the bill shows, to appellant. [4] The witness Etta Childress testified that her daughter disappeared in Red River county from her home and that she could not find her. The objection was that defendant was not charged with the crime in Red River, and was not charged with abduction. This is the bill, and it is too indefinite. As the bill presents itself, there is nothing upon which this court can base a conclusion. The facts would indicate, if we refer to the testimony, that the girl named as the incestuous paramour of appellant was sent from Red River county to Titus county by defendant, and he followed her and had incestuous intercourse with her in Titus county. It is unnecessary to discuss those matters further. The evidence is ample to show not only the relationship, but clearly demonstrates the fact that they cohabited and held themselves out as husband and wife in Titus county. The judgment is affirmed. On Motion for Rehearing. On a former day of the term the judgment herein was affirmed. Appellant has filed a motion for rehearing. 47(1) - DISQUALIFICATION COUNSEL FOR STATE ASSISTANT COUNTY ATTORNEY. the duties prescribed by Pen. Code 1911, arts. The assistant county attorney who, under 426-428, assisted the grand jury in investigation of the case, and wrote the indictment returned, which was superseded by another found Cr. Proc. 1911, art. 617, disqualifying a judge by the succeeding grand jury, is, within Code to sit in a case where he has been counsel for the state. 2. JUDGES 56-DISQUALIFICATION-EFFECT ON ORDER-CHANGE OF VENUE. An order changing the venue made on the judge's own motion under Code Cr. Proc. 1911, § 626, being made by a judge disqualified to sit in the case, is void; judicial discretion being involved. 3. WITNESSES 274(2) CHARACTER WIT NESSES-CROSS-EXAMINATION. Witnesses for the state who have testified to their knowledge of the good reputation of deceased as to peace may, to test their knowledge and credibility, be asked on their crossexamination as to having heard or known of deceased having killed a man, shot another, and being engaged in a number of fights. Appeal from District Court, Parker County; F. O. McKinsey, Judge. N. C. Patterson was convicted of murder, and appeals. Reversed. Simpson & Estes, of Ft. Worth, Preston and Charles T. Prewett, both of Ft. Worth, Martin, of Weatherford, and A. L. Moore for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. for murder, and his punishment assessed at MORROW, J. Appellant's conviction was confinement in the state penitentiary for 20 years. The homicide took place in Tarrant county in November. The grand jury returned into the district court of the Sixty-Seventh judicial district a bill of indictment charg [5] The indictment charges incest between appellant and his niece. There is evidence to show that she was the daughter of his half-sister, making her only his half-niece instead of full-blood. The contention is now that the court erred in submitting the rela-ing appellant with murder. At that time the tionship of the parties under the allegations Hon. Geo. E. Hosey was assistant county atof the indictment. Upon inspection of the torney, and pursuant to his duties as such statute, in view of the evidence, we are of assisted the grand jury in investigation of opinion that appellant is correct, and that the case and wrote the indictment returned. the affirmance should be set aside. The stat-At the succeeding term of court, on Decemute provides that where a party marries his niece or half-niece he would be guilty of incest, or where he should carnally know his niece or half-niece. Inasmuch as the Legislature saw proper to make these distinctions, we are of opinion that the charge of the court should have adhered to the statute and submitted to the jury the relationship of half uncle and half niece. It is unnecessary to discuss the other questions in the case. The motion for rehearing is granted, the affirmance set aside, and the judgment is reversed and the cause remanded. PRENDERGAST, J., absent. ber 4, 1916, the court organized a grand jury which was composed of the same, or substantially the same, men that composed the grand jury for the November term, and which returned the indictment mentioned, and appellant was reindicted for the same offense, and about 10 days later the first indictment After the organizafound was dismissed. tion of the criminal district court of Tarrant county the cause was transferred to that court, and Hon. Geo. E. Hosey became judge thereof. [1] Appellant makes the point that his connection with the case as assistant county attorney operated as a disqualification of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Judge Hosey to sit in the case. The Consti-, of Cock v. State, 8 Tex. App. 666, is used the tution (article 5, § 11) provides, among other following expression with reference to a disqualified judge: things, as follows: "No judge shall sit in any case where he shall have been counsel in the case." Article 617, C. C. P., provides: "No judge * shall sit in any case "He would not be incompetent to preside in taking incidental orders as, for instance, an order granting a change of venue." The only question then arising touching *** where he has been of counsel for the the disqualification of the trial judge was state or the accused." Articles 426-428, P. C., prescribe the duties of the county attorney with reference to the grand jury, providing in substance that he may be present except when the matter of finding indictments is under discussion or the grand jury is voting on the same, may examine witnesses, advise as to the proper mode of interrogating, and with reference to questions of law. This authority has been construed to extend to the assistant county attorney. Moody v. State, 57 Tex. Cr. R. 76, 121 S. W. 1117. We find in the record this statement by the county attorney of Tarrant county: "After the Hon. Geo. E. Hosey, the present judge of this court, was appointed, I suggested to him that he was disqualified in this case by reason of the fact that he was a member of the county attorney's force at the time defendant was indicted for this murder, and therefore he would be disqualified to try the case." This, we think, is the proper construction of the law. The exact point on similar facts was decided by this court in an opinion by Judge Hurt in Terry v. State, 24 S. W. 510, where the facts alleged were that the district attorney took the complaint, reduced it to writing, and caused it to be sworn to and attested. This was the beginning of a prosecution under which the appellant, Terry, was afterwards convicted of a felony. The court said: "If it should appear that he has received the complaint, reduced it to writing, had it signed and sworn to, and attested same, the law requiring him to do these things as counsel for the state, his official acts as attorney ** for the state having relation to this particular case would make him of counsel for the state in this case. The motion should have been sustained." See, also, Graham v. State, 43 Tex. Cr. R. 110, 63 S. W. 558; State v. Burks, 82 Tex. 585, 18 S. W. 662. whether he could receive the indictment, and "Whenever any case or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby." This court, in the case of Fellrath v. Gilder, reported in 1 White & W. Civ. Cas. Ct. App. 599, § 1060, discussing a similar question, expressed itself as follows: * "A certiorari granted by a county judge thus disqualified is a null and void act. The disqualification of the judge extends to all such judicial orders, judgments, or fiats as involve the exercise of the power which is conferred upon the judge to hear and determine * * which may be involvupon the rights ed, in the case which shall be presented for his action." A distinction between ministerial acts, or acts not involving judicial discretion, which may be done by a disqualified judge, and acts involving judicial discretion which he cannot perform, is referred to in Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609, from which we quote as follows: "The distinction between the two is thus defined: Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial." Citing Commissioner v. Smith, 5 Tex. 471; Arberry v. Beavers, 6 Tex. 467, 55 Am. Dec. 791. See Cyc., vol. 23, p. 598. [2] The trial judge having announced his intention to change the venue of the case upon his own motion, the county attorney In State v. Burks, 82 Tex. 585, 18 S. W. having suggested the propriety thereof on 662, a quo warranto proceeding, the facts the ground of previous trials, the appellant opposed the action of the court upon vari- were: That in a contemplated election upon ous grounds set out in writing. The court the question of incorporation of a town the heard evidence upon this opposition, disregarded it, and ordered the venue changed, appellant excepting. The action of a disqualified judge with reference to an order such a judge cannot make is void. Chambers v. Hodges, 23 Tex. 105; Taylor v. Williams, 26 Tex. 583; Abrams v. State, 31 Tex. App. 449, 20 S. W. 987. It follows that if the order changing the venue was one which the judge was dis law firm of which the person who was afterwards judge was a member was consulted. He received no compensation and gave no opinion as to whether or not it would be legal or illegal to take in so much territory. He had nothing to do with the matter after the suit in which the question arose began. court says: The "The questions presented for our decision are whether the judge was disqualified under the Constitution, and whether such disqualification It was held that the judge properly held himself disqualified, citing Sleven v. Wheeler, 58 Tex. 23. Article 626, C. C. P., is as follows: "Whenever in any cause of felony the district judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue." It has been held that the discretion thus given the judge to change the venue on his own motion is an act of judicial discretion, not an arbitrary or personal one. Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Walker v. State, 42 Tex. 360. The judge must be satisfied that a trial alike fair and impartial to the accused and the state cannot be had, and must determine which of a number of counties shall be selected within which the trial on change of venue shall be had. These are not ministerial acts. The making of an order changing the venue is not a mere incidental matter. It is an act involving the exercise of judicial discretion and judgment, and one which a judge who is disqualified "to sit in the case" cannot per form. The assistant attorney general concedes that the order changing the venue in this case is void, because it was made by a disqualified judge. Other cases illustrating the point are: Taylor v. State, 195 S. W. 1147; Garrett v. Gaines, 6 Tex. 435; Jouett v. Gunn, 13 Tex. Civ. App. 84, 35 S. W. 194; Comstock v. Lomax (Civ. App.) 135 S. W. 185; Fellrath v. Gilder, 1 White & W. Civ. Cas. Ct. App. § 1060; Kalklosh v. Bunting, 40 Tex. Civ. App. 233, 88 S. W. 389; Seabrook v. Bank (Civ. App.) 171 S. W. 247; Jirou v. Jirou (Civ. App.) 136 S. W. 493; City v. Bank (Civ. App.) 71 S. W. 799; Burks v. Bennett, 62 Tex. 277; Chambers v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676; Dolsons v. Sheridan Co. (Civ. App.) 178 S. W. 663; Fechheimer v. Washington, 77 Ind. 366; Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438; Dodd v. State, 5 Okl. Cr. 513, 115 Pac. 632; Frevert v. Swift, 19 Nev. 363, 11 Pac. 273; People v. De La Guerra, 24 Cal. 73. [3] One of the issues developed on the trial of the cause was the general reputation of the deceased as to whether he was a dangerous man or otherwise. In cross-examination of one of the witnesses who testified to the good reputation of the deceased in this respect, it was developed that deceased had killed a man, shot another, and had a number of fights. Appellant sought to interrogate other witnesses for the state who testified to the good reputation of the deceased in the respect mentioned, whether they had heard of these occurrences or knew of them. This testimony was excluded upon grounds suggested by the court and made by the The state's witness prosecuting attorney. having testified to his knowledge of the good reputation of deceased, and there being evidence upon which to base the inquiry, we think it within appellant's rights whether or not he had heard of the incidents, in cross-examining the witness to inquire for the purpose of testing the knowledge and Crim. Ev. vol. 1, p. 1013, we quote as follows: credibility of the witness. From Wharton's "So a character witness who has testified as to the good or bad character of the witness whom he is called upon to sustain or impeach may be cross-examined as to his knowledge of the acts that contradict his testimony, not for the purpose of establishing such acts, but to test the witness' credibility, so the jury may be assisted in determining the weight to be given his testimony." This text is supported by the opinion of this court in Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400. See, also, Rice on Crim. Ev. § 375. The idea expressed is that a character witness on direct examination may not be permitted to detail specific acts derogatory to the character of the person in question, but when he has testified to his knowledge of the character he may be crossexamined, and as to the cross-examination the text last cited uses the following language: "When a witness has testified on his examicharacter the inquiry is instituted bears a good nation in chief that the person as to whose character, his opinion and the value of it may be tested by asking the witness on his crossexamination whether he has ever heard that the person whose character is in question has been accused of doing acts wholly inconsistent with the character which he has attributed to him." Under these authorities we think there was error in the limitation placed upon the cross-examination. Because of this error, and that involved in the change of venue by the disqualified judge, a reversal of the judgment of the lower court is ordered. PRENDERGAST, J., absent. DAVIDSON, P. J. Appellant was convicted of aggravated assault, and awarded nine months' imprisonment in the county jail. [1, 2] There is a statement of facts and a bill of exceptions in the record, but they were filed after the adjournment of court, and the record contains no order allowing such filing. The record is also without notice of appeal. On account of the want of this notice the appeal will be dismissed. If it is sought to reinstate the appeal by showing notice of appeal was duly given, we call attention to the fact that it should be made to appear, if the record so shows, there was a proper order entered below authorizing the filing of the statement of facts and bill of exceptions beyond term time. It may be also noticed in this connection that the statement of facts adduced in support of appellant's motion for new trial was not filed in term time. As the record stands the appeal will be dismissed. On Motion for Rehearing. [3, 4] On the former day of the term the appeal herein was dismissed. The defects in the transcript have been cured, and it is now shown it was an omission of the clerk in failing to copy the necessary papers in the transcript. The case will therefore be reinstated. It was intimated in the former opinion that, inasmuch as the testimony set out in the record was taken on motion for new trial, it would not be considered because filed subsewas an order entered, it seems, authorizing quent to the adjournment of the court. There the filing of statement of facts and bills of exception after court had adjourned, but this would not apply to evidence taken on motion for new trial. This must be filed during term time. The decisions all seem to be in accord on this question; therefore the evidence as introduced in regard to the motion for new trial will not be considered. Without this there is nothing for the court to review, and the judgment will be affirmed. PRENDERGAST, J., absent. So declaring the result of election and the issuance of such order are merely ministerial, and not legislative, acts. 3. INTOXICATING LIQUORS 36(5) LOCAL OPTION ELECTIONS-STATUTES. Even if the Legislature did not have the power to authorize the commissioners' court to issue an order prohibiting the sale of intoxicants as provided by Vernon's Sayles' Ann. Civ. St. 1914, art. 5721, it is practically immaterial, as the mere declaration by such body that the results of an election were in favor of local option would put the law in effect. Appeal from District Court, Ellis County; F. L. Hawkins, Judge. Bummer Hines was convicted of violating the local option law, and he appeals. Affirmed. Tom P. Whipple, of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of violating the local option law, and allotted two years' confinement in the penitentiary. [1] The only question suggested for revision is the alleged unconstitutionality of the local option law, in that it is invalid because it authorizes the declaration of the result of the vote and ordering its publication by the commissioners' court. The proposition is |