(216 S.W.) The second instruction defined correctly posed annexation, or, their causes of action, the meaning of the term, "manifest injury if they are to be deemed plaintiffs, by requirto the persons owning real estate in the ter- ing the jury, before it could find a verdict ritory sought to be annexed." for them, to believe both that the annexation would not cause manifest injury to the owners of real estate within the proposed annexation ånd would not be to the interest of the city, when they were entitled to a verdict in their favor if the annexation was either not to the interest of the city or would cause manifest injury to the owners of real estate within the territory proposed to be annexed. The owners of real estate within the territory proposed to be annexed were [1] The statute (section 2762) which prescribed the method of an action of this kind, and defines the issues which must be submitted to the jury, where 75 per centum of the freeholders of the territory sought to be annexed have not remonstrated, as was the case in this action, is as follows: "If the jury be satisfied, upon a hearing, that less than seventy-five per cent. of the freeholders of the territory to be annexed have remonstrated, and that the adding * of such territory to the city will be for its interest, and will cause no manifest injury to the persons owning real estate in the territory, sought to be annexed, * it shall so find, and said annexation shall be approved and become final." It is very clear that, in accordance with the provisions of the statute, an annexation of territory to a city of the first class, and where 75 per centum of the freeholders of the territory sought to be annexed have not remonstrated, cannot lawfully be effectuated, unless two states of case exist. The one is that the annexation will be to the interest of the city, and the other is that the annexation will cause no manifest injury to the persons who own real estate within the territory sought to be annexed. Unless these two states of case concur, the annexation cannot be made. If the annexation will be to the interests of the city, but will cause manifest injury to the freeholders of the territory proposed to be annexed, the annexation cannot be made. Neither can it be made if it will cause no manifest injury to the freeholders of the territory proposed to be annexed, but will not be to the interest of the city. The purpose of the statute is to protect the interests of the city, and also those of the freeholders in the territory | which is the subject of the proposed annexation. Hence the city was not entitled to succeed, unless the annexation would be both for its interests and would cause no manifest injury to the freeholders of the territory to be annexed, and hence the plaintiffs were entitled to defeat the annexation, if it was either not for the interests of the city or would work manifest injury to the freeholders of the territory proposed to be annexed. The instruction, as worded, correctly stated the city's rights to a recovery, if the evidence warranted it; that is, it was entitled to have the annexation made and confirmed, if it was to its interest, and did not cause manifest injury to the freeholders who resided in the territory proposed to be annexed. It, however, denied to the freeholders their grounds of defense to the pro under the statute, and it was their right to defeat the annexation, if it would cause manifest injury to them, although the annexation might be for the interest of the city; but under the instruction the jury could not find for them, although it might believe that the annexation would work injury to the real estate owners in the territory to be annexed, unless it be believed also that the annexation would not be to the interest of the city. [2, 3] Every litigant, upon a trial by jury, is entitled, when he requests it, to have his cause of action or ground of defense presented by instruction which would enable the jury to find for him, if the evidence warrants it, and if there are two grounds of defense, or two causes of action, either one of which being believed, will entitle him to a verdict in his favor. The instruction, to escape being prejudicial must be so drawn as to permit the verdict to be in his favor if either of the grounds is sustained by the evidence, and he should not suffer defeat and be deprived of his right because the jury is required to not only believe the grounds which will entitle him to the verdict, but in addition there to to believe some other fact, which is not necessary to his defense, or to the support of his cause of action. The disjunctive "or" should have occupied the place of the conjunctive “and” in that part of the construction where it was undertaken to declare to the jury the state of case when its verdict should be for the plaintiff, so that the verdict could be for them in the event the jury believed either that the proposed annexation was not for the interest of the city or would cause manifest injury to the owners of real estate in the territory which was proposed to be annexed. It might be suggested that the error arising from the use of so small a word was not prejudicial, but the effect of it was to take away the right of the plaintiffs, and it cannot be held that the error was not prejudicial upon the ground that the jury failed to heed, and disregarded, the instructions of the court, and it would not do to say that such an error is not prejudicial in a case where a jury is called upon to pass upon the future welfare of 40,000 of their fellow citi-, complained of in the instant case, and the zens, where the instructions do not correct- error in that opinion was, perhaps, the rely define the rights of those citizens, and es-sult of inadvertence or oversight in the writ pecially in a character of action which is ing of the opinion, but it should no longer unusual, and with which jurors have no be permitted to remain a precedent for the experience. The learned trial judge was guidance of trial courts. doubtless led into the error in giving the instructions by the opinion of this court in Louisville v. Brown, 119 S. W. 1197, wherein, in directing an instruction in a similar case, the same error appears as in the instruction The judgment is therefore reversed, and cause remanded for proceedings not inconsistent with this opinion. All members of the court sitting, except Judge QUIN. (86 Tex. Cr. R. 441) 17, 1919.) (216 S.W.) (No. 5493.) scenes connected with his life, and what he did and said, are specified in the affidavits, which, if true, would show that the man's mind was thoroughly unbalanced. Nearly all of these affiants state that appellant is crazy 1. CRIMINAL LAW 958(6) EVIDENCE RE- and was so regarded. He imagined that he QUIRING NEW TRIAL ON ISSUE OF INSANITY. had a divine commission to preach and did In a prosecution for burglary, wherein an preach, and where things did not go to suit issue of insanity had been found against de-him while he was delivering his sermon he fendant, affidavits on a motion for new trial on that issue held to present evidence requiring a new trial to be granted notwithstanding that such evidence was, strictly speaking, not newly discovered evidence. 2. CRIMINAL LAW NEWLY DISCOVERED BLE TO ISSUE OF INSANITY. The rule in Texas with reference to cumulative evidence and strict diligence does not apply to the question of insanity, viewed in the light of newly discovered testimony. would use violent profanity. He imagined that he was John the Baptist, and a great many things that were not true, and any rational mind would have known them to be untrue and not facts. Under the testimony the man's mind at the time of the facts enumerated was unquestionably unsound. No impartial mind could read these affidavits without reaching that conclusion. It is true that the matters enumerated happened prior to his removal to Henderson county; yet, in view of all the environments, we are of opinion that these facts should have been passed Appeal from District Court, Henderson upon by the jury. Some of the witnesses, County; John S. Prince, Judge. Mose Walker was convicted of burglary, and he appeals. Reversed and remanded. testifying before the jury in regard to the matter, stated that he would know right from wrong at times; but, in view of the facts and statements and the nature of the affidavits C. M. Cureton, Atty. Gen., and C. W. Tay-attached to the motion for new trial, we are lor, Asst. Atty. Gen., for the State. of opinion the court should have granted him another trial before a jury and have these DAVIDSON, P. J. Appellant was convict-matters before the jury for their decision. ed of burglary and allotted five years in the penitentiary. The first bill of exceptions recites the fact that one of the jurors mentioned the fact that appellant did not testify. This was controverted, and the same juror who made the original affidavit filed a counter affidavit recanting what he had said with reference to it. The court passed upon this. We are of opinion the court was not in error in his ruling under this record. [1, 2] The question of insanity was an issue in the case on the trial, and there was evidence introduced pro and con not of a very satisfactory nature, and the jury found against appellant. This issue arose under the general plea. Appellant in his motion for new trial attaches the affidavits of 35 or 40 people, who swear, nearly all of them, that appellant is crazy, and has been for a number of years, and is so regarded by all the people who knew him, and especially where he lived in Dallas and Dallas county. These affiants knew and had known him for years prior to the alleged burglary. They show that his father was insane, that a sister was in the insane asylum, that some of his aunts were crazy, and these seems to have been a streak of insanity running through his family. It would be entertaining to recount the statements of these witnesses, but of no practical value, to the mind of the writer; but a great many instances and occurrences and This in a sense may not be said to be newly discovered testimony, because, if it was not known, it could have been known by reasonable diligence prior to the trial; but the rule in Texas with reference to cumulative evidence and strict diligence does not apply to the question of insanity, viewed in the light of newly discovered testimony. Mr. Branch lays down the rule, which seems to be supported by the authorities, that— "Where the plea is insanity, the same strictness is not required as to newly discovered evidence of insanity as if some other fact was sought to be proved. A new trial should be granted for proof of facts which show insanity, although no diligence was used to obtain such evidence before the trial." Schuessler v. State, 19 Tex. App. 472; Hill v. State, 53 S. W. 845; Horhouse v. State, 50 S. W. 361. It is not the policy of the law to punish criminally people whose minds are demented. There would scarcely come a case where an equitable showing is more strongly made, if not strictly a legal one, than in this case. In view of the overwhelming evidence of these affiants to the effect that appellant was insane, we are of opinion that the jury should pass on it in the light of this testimony, al. though it may not have been newly discovered. For the reasons indicated, the judgment will be reversed, and the cause remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (86 Tex. Cr. R. 450) KENNEDY v. STATE. (No. 5556.) 1919.) 1. INDICTMENT AND INFORMATION 110(3) CIENT. ute upon which it is founded makes it an offense to "procure, attempt to procure, or be concerned in procuring a female inmate (Court of Criminal Appeals of Texas. Dec. 17, for a house of prostitution." The complaint is that the "acts or omissions" of the appellant by which he is charged to have procured the female inmate are not disclosed by the pleading. To this the state answers that it is enough that the indictment followed the language of the statute. This rule applies in those instances only in which the indictment is framed under a statute which defines the act or acts constituting the offense in a manner that will inform the accused of the nature of the charge against him. The test is not that the indictment follows the statute, but that it is in compliance with the law prescribing the requisite of an indictment. An indictment under our statutes is "the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is de The rule that it is sufficient if the indictment follows the language of the statute applies only where the indictment is framed under a statute which defines the acts constituting the offense in a manner that will inform accused of the nature of the charge, the test being, not that the indictment follows the statute, but that it is a compliance with the law prescribing the requisites of an indictment, an "indictment" being a written statement of the grand jury accusing person therein named of some act or omission which by law is declared to be an offense, such offense to be set forth in plain and intelligible words, in view of Code Cr. Proc. 1911, §§ 450, 451, and Const. art. 1, § 10. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Indict-clared to be an offense," and "the offense ment.] 2. INDICTMENT AND INFORMATION 110(51) OF STATUTE INSUFFICIENT IN NOT DISCLOS- An indictment charging that defendant "did then and there unlawfully and willfully attempt to procure, and did procure, and was concerned in procuring," a female named as an inmate of a house of prostitution, although following the words of the statute, held insufficient as not disclosing the acts or omissions of accused by which he was charged to have procured the female inmate in view of Code Cr. Proc. 1911, arts. 450 and 451, and Const. art. 1, § 10. * must be set forth in plain and intelligible Appeal from District Court, Potter Coun- Duke, 42 Tex. 462; Huntsman v. State, 12 ty; Henry S. Bishop, Judge. Tex. App. 636; Johnson v. State, 42 Tex. Cr. Dave Kennedy was convicted of procuring, and he appeals. Reversed and remanded. Veale & Lumpkin, of Amarillo, for appellant. Alvin M. Owsley, Asst. Atty. Gen., for the guage of the statute in charging the offense State. MORROW, J. The indictment contains several counts. The first, upon which the conviction was had, charged that "Dave Kennedy did then and there unlawfully and willfully attempt to procure, and did procure, and was concerned in procuring Fannie Doty, a female, as an inmate of and for a house of prostitution in a house and place in said county and state where prostitutes then and there resorted for the purpose of plying their vocation as such prostitutes, and were so kept, as the said Dave Kennedy then and there well knew, contrary to the statutes in such cases made and provided and against the peace and dignity of the state." [1] The sufficiency of this indictment was questioned in a motion to quash. The stat In Gray v. State, 7 Tex. App. 13, it is said in substance that, where following the lan will fulfill the requirements of the indictment mentioned, the use of the language of the statute will be sufficient; but, where the language of the statute alone would be insufficient to set out the offense in compliance with the rule, it is essential that averments be made showing the existence of the additional facts necessary to constitute the of fense. cases. This principle is reaffirmed in many See Kerry v. State, 17 Tex.. App. 178, 50 Am. Rep. 122; Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744, 16 Ann. Cas. 515; Huntsman v. State, 12 Tex. App. 646; Dunlap v. State, 40 Tex. Cr. R. 590, 51 S. W. 392; Hoskey v. State, 9 Tex. App. 202; Bigby v. State, 5 Tex. App. 101; McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Bishop's New Crim. Procedure, vol. 2 p. 487. (216 S.W.) It is stated in Bishop's New Crim. Procedure, vol. 2, § 623, as follows: "The doctrine is that, since the indictment on a statute must follow, besides the special rules which govern it, those also which govern other indictments, when the statutory words come short of this, other appropriate ones expanding it further must be added." The case of McDowell v. State, 69 Tex. Cr. R. 548, 155 S. W. 521, without discussing the reason, declares an indictment drawn in the language of the statute mentioned sufficient, and a similar ruling was made in Baldwin v. State, 198 S. W. 305, though in that case the language in which the motion to quash was couched seems to have controlled. It is on account of these cases that we have gone into some detail in reviewing the principles applicable to indictments. [2] Believing that the indictment in the present instance falls short of complying with the requisities of an indictment as defined in both the Constitution and the statute, and that to sustain it against a motion to quash would do violence to the rules followed by this court in the numerous cases cited above and uniformly followed in other Jurisdictions, we deem it our duty to over rule the cases mentioned above which con- The accused is entitled to a statement of the facts relied upon, and if these are not contained in the statute denouncing the offense, they must be supplemented by the pleader drawing the indictment. The statement of a legal conclusion or result will not suffice. Wharton's Crim. Procedure, vol. 1, § 196; Strickland v. State, 19 Tex. App. 519; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035; La Grone v. State, 12 Tex. App. 426. There are numerous acts which might result in procuring a female inmate for a house of ill fame. They might be acts amounting to fraud, force, or persuasion. In the present instance, according to the theory of the state developed under the evidence, the female was procured by means of a contract or agreement under which she was to receive certain compensation. ΤΟ charge procuring is but the conclusion of the pleader. It is not a statement in plain and intelligible language of the acts or omissions relied upon. One who willfully "imputes" a want of chastity to a female commits the offense of slander, but the indictment which (Court of Criminal Appeals of Texas. Dec. 3, charges the language quoted from the statute is fatally defective in failing to set out the language charged to have been used by the 1. CRIMINAL LAW 1097(1) GROUNDS OF accused. La Grone v. State, 12 Tex. App. 427. "Disturbing religious worship" is an offense, but the indictment must describe the means used. Merely charging that the accused "disturbed" the congregation, while following the statute, does not comply with the law. Lockett v. State, 40 Tex. 4; Thompson v. State, 16 Tex. App. 159. So in the offense of bigamy (Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035) and murder (Strickland v. State, 19 Tex. App. 519) and in numerous other instances the necessity to do more than follow the statute is illustrated. See Wharton's Crim. Procedure, vol. 1, § 196, and notes. Pertaining to a statute framed in substantially the same language as ours, specific instances are furnished in which an indictment charging the offense of pandering in the language of the statute denouncing the offense have been condemned as insufficient in failing to designate the acts of the accused, instead of relying upon the conclusion that he procured the inmate, in Abrams v. State, 13 Okl. Cr. 11, 161 Pac. 332, and State v. Topham, 41 Utah, 39, 123 Pac. 888. The judgment of the trial court is reversed, and the cause remanded. (86 Tex. Cr. R. 333) DOLLAR v. STATE. (No. 5578.) 1919.) OBJECTION NOT STATEMENT OF FACT. Grounds of objection in bill of exceptions will not take place of the necessary statement of facts to show that objection is well taken. 2. CRIMINAL LAW 1169(1)—PROSTITUTION 4 EVIDENCE TO SHOW CHARACTER OF PLACE AS HOUSE OF ILL FAME. In a prosecution for procuring a female to become an inmate of a house of ill fame, testimony that a prostitute occupied a room in the hotel was admissible to show the character of with a man in the lobby of accused's hotel relthe place, and the fact that her conversation ative to her occupying a room was or was not heard by accused was immaterial, where she in fact did occupy a room pointed out to her. 3. CRIMINAL LAW 414-ADMISSIBILITY OF EVIDENCE OF ATTEMPT TO BRING FEMALE Where in prosecution for procuring a female to become an inmate of a house of ill fame it was shown that female left the house and went to the home of a Mr. L., testimony of the female that she heard a conversation between accused and Mrs. L. when she was about six feet away in another room with open door was a sufficient predicate to admit the conversation. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |