conflict between the decisions of the Court of Criminal Appeals and the decisions of the Court of Civil Appeals is immaterial." Under this ruling of our Supreme Court, the decision of the court of Civil Appeals was wrong and without authority of law, in reviewing the matters preceding the election, such as the posting of the notices, etc. In view of this construction by our Supreme Court of the statute in question, it follows that the decision of a contest in a local op tion election in a civil proceeding is not binding, unless it be as to the regularity and legality of what transpired on the day of the election. It may be competent, or even desirable, that the Legislature provide for a review and final decision of every question connected with the inauguration and putting into effect of the local option law, from the call of the election by the commissioners' court until the close of the polls, but it has not done so. Therefore the decision of the question by the Court of Civil Appeals touching the question of posting notices was not only immaterial, but without authority of law, so far as this court is concerned. As the matter stands, we have no authority on the question, except our own decisions. We see no reason for overruling the long line of decisions in this state holding that the statute with reference to notices is mandatory. It has been the accepted doctrine, and in all the enactments and re-enactments of the local option law this doctrine has not been sought to be changed by legislative action. Besides, this seems to be the rule in this state in regard to other elections where the question of local or special taxes has been involved.

Without pursuing the question further, we are of opinion that the election was void, and the relator is entitled to be discharged, and it is so ordered. Reversed and relator discharged.

BROOKS, J. I dissent from the opinion of the majority, and think that the opinion of the Court of Civil Appeals in Norman v. Thompson, 72 S. W. 64, 6 Tex. Ct. Rep. 641, is decisive of this question; and this regardless of whether said decision is antagonistic to the decisions of this court or not. Furthermore, I think the matter is res adjudicata, and this regardless of the late holding of the Supreme Court on this question.

FLOECKINGER v. STATE.* (Court of Criminal Appeals of Texas. June 3, 1903.)

GAMING-OFFENSE OF PRIVATE RESIDENCESUFFICIENCY OF INFORMATION-SUFFIICIENCY OF EVIDENCE.

1. Pen. Code 1895, art. 379, as amended by Acts 27th Leg. 1901, p. 26, c. 22, prohibits the playing at a game of cards for money at a private residence commonly resorted to for the *Rehearing denied June 23, 1903.

purpose of gaming. Held, that an information charging that accused unlawfully played, bet, etc., at a game of cards in the private residence of C., "said private residence being then and there occupied by a family, and said private residence being then and there one commonly resorted to for the purpose of gaming," was sufficient.

2. Where, in a prosecution for gaming at a private residence, the evidence shows that for six months a number of games were played at the residence, witnesses saying that they know six or eight times when they were there and played cards for money, it is sufficient to sustain a finding that the residence was commonly resorted to for the purpose of gaming, within Pen. Code 1895, art. 379, as amended by Acts 27th Leg. 1901, p. 26, c. 22, prohibiting playing cards for money at a private residence commonly resorted to for the purpose of gaming.

Appeal from Williamson County Court; Chas. A. Wilcox, Judge.

F. C. Floeckinger was convicted of gambling, and appeals. Affirmed.

Robertson & Goldstein, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of betting at a game of cards in a private residence, and his punishment assessed at a fine of $10.

The information sufficiently charges the offense of betting at a game of cards at a private residence, the allegation in this regard being that appellant did "unlawfully play, bet, and wager money and articles of value, and the representative of money and articles of value, at a game of cards in the private residence of Mose Cinnamon, there situate, said private residence being then and there occupied by a family, and said private residence being then and there one commonly resorted to for the purpose of gaming." Article 379, Pen. Code 1895, as amended by the acts of the Twenty-Seventh Legislature 1901, p. 26, c. 22, prohibits the playing at a game of cards for money at a private residence commonly resorted to for the purpose of gaming. This is the allegation in the information. However, appellant contends that the evidence fails to show that said Mose Cinnamon's private residence was commonly resorted to for the purpose of gaming. We have carefully examined the evidence, and it shows there were a number of games played at said residence, extending from a space of time from the 1st of January until the 1st of July, 1902. The witnesses say they know six or eight times when they went to this residence and engaged in games of cards for money. Both on account of the number of parties engaged in such games, as well as the number of games played and the space of time over which these games extended, there was unquestionably sufficient evidence to raise the issue as to whether said private residence was commonly resorted to for the purpose of gaming; and the evidence was ample to authorize the finding that it was commonly resorted to for the purpose of gaming. Wheelock V.

State, 15 Tex. 264. Appellant also contends that the evidence is not sufficient to establish that said house was a private residence. We have examined the record carefully in that respect, and we do not believe this point is well taken.

There being no error in the record, the judgment is affirmed.

INGRAM v. STATE.*

(Court of Criminal Appeals of Texas. June 3,

1903.)

INCEST EVIDENCE - ACCOMPLICE - ARGUMENT TO JURY-REMARKS OF CRIMINAL. 1. In a prosecution for incest, testimony of a sister of the woman with whom the incest was committed that, while lying in bed with her sister, she was waked by defendant's presence, and saw him sitting on her sister's side of the bed, did not show that witness was an accomplice.

2. In a prosecution for incest, a sister of the woman with whom the incest was committed testified she heard defendant during the night on the bed on which she and her sister slept, on her sister's side of the bed, and that a day or two afterwards defendant told her that he sat on the bed about an hour and a half, because he heard some one at the window. In commenting on this evidence, the county attorney remarked that, if defendant had heard anybody at the window, he would have told the girls' mother, and not waited a day to tell the sister. Held, that the remarks were a legitimate argument on the evidence.

out copying it in detail, we hold there is no

error.

He complains of the following argument made by counsel for the state: "That, if defendant had seen or heard anybody at the window, he would have told the old woman, the mother, and not waited a day to tell the younger sister;" to which appellant objected, and the court refused to stop state's counsel, and counsel repeated the statement to the jury, and appellant again excepted, the ground of objection being that Myrtle Gant, a sister of Ethel Gant, testified for the state, in substance, that one night during the year 1901, some time during the summer, she heard defendant some time in the night on the bed in which she and Ethel, her sister, slept, and on Ethel's side of the bed; and that the next day or two afterwards defendant told her sister, Myrtle, that he sat on the bed about an hour or an hour and a half, because he heard some one at the window. The bill further discloses evidence was introduced to show that Mrs. Gant was the mother of defendant and of Ethel and Myrtle Gant. And the further objection was made that, if defendant had undertaken to prove by any witness that he told his mother what he told the sister or Myrtle Gant, such evidence would not have been admissible in favor of defendant, as it would have been self-serving in this matter, and hence inadmissible. The court appends the

Ras Ingram was convicted of incest, and appeals. Affirmed.

Thos. Ivy, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of incest, and his punishment assessed at confinement in the penitentiary for a term of eight years.

The first ground of the motion for new trial complains of the failure of the court to charge, in substance, that Myrtle Gant was an accomplice. There is nothing in the evidence to warrant this. The incest was committed upon Ethel Gant, sister of Myrtle, and there is nothing to show that said Myrtle was connected in any way with appellant so as to make her an accomplice. She merely testifies to having seen appellant sitting on the bed at night, after they had retired, and said act waked her up, and she found appellant sitting there on Ethel's side of the bed.

Bare knowledge of a fact criminative of appellant would not make the witness an accomplice.

The third ground of the motion for new trial complains of the charge of the court on the law of accomplices. The charge, when considered as a whole, is an admirable one, presenting the law in regard thereto. With

Rehearing denied June 23, 1903

addition to the language imputed to the county attorney, and copied in this bill, and added by the court by way of reason for requiring special charge No. 4, the county attorney added that defendant would have told the mother and aroused the household at the time, and not have waited a day or two to tell the sister whom he suspected had seen him. The court regarded this as a legitimate deduction from the evidence, and proper argument, and upon mature reflection is still of the same opinion." We think the court is correct in his explanation stating that the argument was legitimate under the testimony. So it follows from what has been said that the court did not err in refusing to give special charge with reference to the argument of the county attorney.

The third ground of the motion complains that the verdict of the jury is not supported by the evidence, in that prosecutrix, Ethel Gant, being an accomplice, is not corroborated. In our opinion, the evidence is sufficient, and the testimony of prosecutrix is corroborated by evidence strongly tending to connect defendant with the commission of the crime. The facts in this case are stronger than in Jackson v. State (Tex. Cr. App.) 40 S. W. 998. See, also, Martin v. State, 21 Tex. App. 1, 17 S. W. 430; Mercer v. State, 17 Tex. App. 465; Barber v. State, 69 S. W. 515, 5 Tex. Ct. Rep. 604. The judgment is affirmed.

LOCKLIN v. STATE.

(Court of Criminal Appeals of Texas. May 13, 1903.)

MURDER-DISQUALIFICATION OF JUDGE -INTEREST AS COUNSEL-CHANGE OF VENUERIGHT OF POSTPONING TRIAL-JURY-SELECTION OF TALESMEN IRREGULARITY VALIDITY OF PARDON-PREVIOUS PARDONADMISSIBILITY OF EVIDENCE-ARGUMENT OF COUNSEL NECESSITY OF PROMPT OBJECTION-IMPEACHMENT OF WITNESS-REPUTATION FOR MORALITY-CORROBORATION OF

ACCOMPLICE-SUFFICIENCY OF EVIDENCE.

1. The fact that a judge trying a murder case was once appointed, though without authority of law, assistant district attorney, and as such aided in presenting to the grand jury the case against an accomplice, does not disqualify him; accused's relation to the crime not being then known or referred to, and on his trial the corpus delicti not being seriously contested.

2. Code Cr. Proc. 1895, art. 707, authorizing a defendant separately indicted with another for the same offense to secure a postponement of his trial till after that of his codefendant, provides that such postponement shall not work à continuance. Held that where, by reason of a change of venue as to one defendant, a postpouement of his trial would work a continuance, it was properly refused.

3. An irregularity in the selection of talesmen, the summoning of whom is directed in the same writ with that of a special venire, is not ground for quashing the venire.

4. Code Cr. Proc. 1895, art. 647, provides that a special venire shall be selected by placing the names of those selected for jury service in a box, from which the clerk shall draw the number required. Article 649 provides that, when there is a failure to select a jury from the special venire, the court shall direct the sheriff to summon any number of persons it may deem advisable. Held, that it is not necessary that the names of the talesmen should be selected in the manner provided for the selection of a special venire.

5. The validity of a pardon restoring a convict to rights of citizenship is not affected by a recital of the grant of a previous pardon.

6. A pardon restoring the convict to rights of citizenship may be granted after the expira

tion of his term of service.

7. A pardon reciting that it is granted because the convict's testimony is needed in a criminal case is not invalid, the motives of the executive not being subject to question by the courts.

8. Where, in a criminal prosecution, an accomplice, who turned state's evidence, testified that he was not induced to do so by the promise of immunity from prosecution for another offense, and this statement is not questioned by accused, the admission of evidence of other witnesses that they did not promise such immunity is not ground for reversal.

9. In a prosecution for homicide, accused's witness, testifying to an alibi, was asked on cross-examination if he did not state to a certain person that on the night before the killing his wife was to go to church with accused, and that accused did not appear, and answered "No." Held, that it was proper to impeach him by proving such statement; the impeaching evidence being limited to its effect on his credibility.

10. In a prosecution for homicide, argument by state's counsel that, if accused is erroneously found guilty, he may move for a new trial, has a right to appeal, and may be pardoned, but that, if acquitted, the matter is forever settled, is not so prejudicial as to require a reversal, where no objection is made until after the argument is closed, no exception taken, and

6. See Pardon, vol. 37, Cent. Dig. § 13.

75 S.W.-20

14. In a criminal prosecution, an accomplice is sufficiently corroborated, under the statute, if the corroboration goes to the main fact, though he may be contradicted as to some details.

Appeal from District Court, Gillespie County; Clarence Martin, Judge.

Sam Locklin was convicted of murder in the first degree, and appeals. Affirmed. Motion for rehearing overruled.

McLean & Spears, M. D. Slator, W. C Linden, and Will G. Barber, for appellant. Moursand & Moursand, James Flack, Moore & Moore, and Howard Martin, Asst. Atty. Gen., for the State.

on.

The state's testimony shows that appellant and Ike Barber waylaid and assassinated deceased, R. F. Rowntree, about the 20th of July, 1893. Deceased at the time was en route from the town of Llano to his home, situated some 20 miles in a southwesterly direction therefrom. On the night preceding the homicide, which occurred about 9 o'clock, deceased stayed at one Byfield's, about halfway from Llano to his home. Early the next morning, appellant and said Barber, who had secreted themselves on the roadside in a little field, shot and killed deceased, who was riding in a two-horse wagThe parties escaped, and appellant's connection with the homicide was not developed until some time during the year 1902, when he was indicted. The state's case mainly depends on the testimony of Ike Barber, an alleged accomplice, and one Mon Turner, also claimed to be an accomplice. Appellant defended on the weakness of the state's case, contending that the accomplices were not sufficiently corroborated, and also supplementing this by proof of an alibi. The venue was changed from Llano county, where appellant was indicted, to Gillespie county; the change being made by Hon. Clarence Martin, judge of said district court, of his own motion.

When the case was called for trial, appellant excepted to Hon. Clarence Martin, judge of said district court, trying said cause, on the ground that he had been of counsel for the state in the prosecution of the case. The

proof, as presented in the bill of exceptions, shows that during the year 1900 said Martin was appointed by the district judge of Llano county to assist the district attorney in representing the state before the grand jury, and that at said term the matter of the homicide of R. F. Rowntree was investigated by the grand jury, Ike Barber being then charged with his murder, and that, after his appointment, said Martin, who was then a practicing lawyer of said court, did represent the state in the investigation of said charge against Barber of the murder of Rowntree. In that connection it was also shown that Ike Barber was a principal witness for the state against Locklin, and that he was a confessed principal in the murder of Rowntree, and that therefore said Martin was disqualified to try the cause. In connection with the bill of exceptions, Hon. Clarence Martin explains his connection with said cause as follows: That he was appointed by the court to assist the district attorney at the November term, 1900, of said court, and that Ike Barber was then charged with the killing of Rowntree; but there was no charge against appellant in connec tion with said offense, nor was it then known or suggested that he was implicated therein. That during the investigation said Martin heard some witnesses testify in the case against said Barber-particularly as to statements in the nature of confessions of said Barber-but that no testimony in his hearing or presence connected appellant with said offense. That said Martin did not know said appellant at the time, and had never heard his name mentioned in connection with the killing of Rowntree. The question, as presented, is, was Judge Martin so connected with the prosecution as to disqualify him to act as judge; that is, was he of counsel for the state, as against appellant? In Reed v. State, 11 Tex. App. 587, we had a somewhat similar question. In that case the trial judge was disqualified, on account of relationship, from trying one Stillwell, jointly indicted with Reed for murder. Stillwell had not been arrested. Reed was arrested. The judge recused himself on the ground of relationship with Stillwell. It was held in that case that, Stillwell not having been arrested, the fact that he was related to him did not affect his qualification to try Reed, who alone was on trial. The court further say, if Stillwell had been on trial jointly with Reed, that said judge would not have been competent to try the case. In this particular case the fact that the judge had never represented the state as to appellant, Locklin, although he may have been engaged in the prosecution of Barber, and had heard some of the testimony during the investigation of the case against him, it does not occur to us, disqualified him from trying appellant; that is, the same principle would apply as in the case above cited. This is not

like the case of Utzman v. State, 32 Tex. Cr. R. 426, 24 S. W. 412, or, rather, in our opinion, that case supports the view here taken. For, as was said in that case, "although Judge Woodard was district attorney at the time the homicide was committed, he had nothing to do with the prosecution of said case." Nor is it like the case of Terry v. State, 24 S. W. 510. In that case, Judge Spooner, who had previously been district attorney, actually prosecuted the case against the defendant in the examining trial. It will be noted, furthermore, that, when Judge Martin officiated in Llano county with the district attorney, Locklin was not known to have any connection with the murder, nor was anything developed touching his connection with the crime. Moreover, we are not advised of any statute or law authorizing the judge to appoint an assistant district attorney. Article 38, Code Cr. Proc. 1895, authorizes the judge, in the absence of the district attorney, to appoint a district attorney pro tem.; but this was not the case here. It appears to us that the appointment by the judge of Mr. Martin was without authority of law, and he had no official character as a prosecutor. We hold there was no error on the part of the trial judge in refusing to recuse himself, because he was never of counsel for the state in the prosecution of appellant, Locklin.

On the trial of the case, appellant made a motion to sever from one A. K. Scott, who he alleges was indicted in Llano county as an accomplice in the murder of Rowntree, being the same offense alleged against appellant; that the testimony of said Scott was material for his defense, and that there was not sufficient evidence against said Scott to secure a conviction; that an indictment was then pending in Llano county against said Scott; and he asked that he be first tried, in order that he might avail himself of his testimony when acquitted. The court overruled this. When the venue in appellant's case was changed from Llano county, it does not appear that he objected thereto on the ground that he desired a severance from Scott, in order to procure his testimony, but he only objected generally to the change of venue. It may be if this objection had been urged at the time, the court would not have changed the venue as to appellant, or, if he did, he might have changed the venue in both cases to Gillespie county; and in that event appellant could have exercised his right of severance, both cases being in the same jurisdiction. But here the two cases were pending in different counties, and, if the motion had been granted, it would necessarily have operated a continuance of the case. As we understand, the statute (article 707, Code Cr. Proc. 1895) especially provides that the making of such affidavit for severance, without other sufficient cause, shall not operate as a continuance to either party. And see

King v. State, 35 Tex. Cr. R. 478, 34 S. W. 282; Stouard v. State, 27 Tex. App. 1, 10 S. W. 442.

Appellant made a motion to quash the venire on the ground that 24 names were added to the venire of the week, which consisted of only 36 jurors, and that these 24 were added as talesmen, and summoned by the sheriff, and not drawn by lot. We have examined the writ, and it is somewhat peculiar in form. It first requires the sheriff to summon 36 persons who have been selected in the manner as provided by law to serve as special jurors. These were admittedly the jury for the term, and their names were drawn by lot. After this, in the same writ, the sheriff was instructed to summon 24 additional qualified jurors of Gillespie county to appear before the district court on the day set for trial. The court, in his explanation to this bill, states that on the first day of the term of the court it was ascertain ed that the jury commissioners had only selected 36 special jurors to serve for the first week of the court, and the court, knowing that said number was insufficient from which to procure a jury, ordered the clerk to draw the names of 36 regular jurors, as required by law, and place them in the list in the order drawn, which was done, and the sheriff was ordered to summon 24 additional qualified talesmen, after summoning the 36 regular jurors, which was done by him; that said 36 regular jurors were summoned, and they were first tendered as jurors upon this trial in their regular order. After this was exhausted, the additional talesmen who had been summoned were brought in, and the jury completed; defendant having exhausted only 14 challenges. The effect of this order for special venire was to order a venire of 36 jurors to try the case, and the remainder of the jurors summoned were talesmen, and not a part of the special venire, which, in accordance with law, is required to be drawn by lot from the body of jurors selected for the term of court. While the action of the court in ordering the sheriff to summon the talesmen, in connection with the special venire, was irregular, yet this was no reason to quash the special venire. If appellant was not satisfied with the mode of summoning talesmen, or dissatisfied with the talesmen brought in in this manner, he might have made a motion to quash that portion of the writ in regard to said talesmen. The court then might have set aside the order for the talesmen, and ordered the sheriff to summon a new list of talesmen. The objection of appellant as to the talesmen, as we understand it, was because they were not placed in the box, and drawn by lot, and placed on the list in the order drawn. We do not understand the statute to require this procedure. Of course, when these talesmen were brought in, if request had been made that their names be placed in the box and then drawn by the clerk, there could have

been no objection, but the statute does not seem to apprehend this method as to talesmen. See articles 647-649. Code Cr. Proe 1.895.

When the witness Mon Turner was placed on the stand by the state, appellant showed that said witness had been indicted for a felony, and was not competent to testify. In response to this, the state presented what was claimed to be a pardon, dated January 9, 1903. The recitals thereof stated, in effect, that said Turner had been convicted of rape in 1874 in the district court of Burnet county, and sentenced to the penitentiary for five years; that he had served out his term and thereafter, on June 22, 1876, a pardon was issued in his favor by Gov. Coke, but that said pardon failed, in terms, to restore him to citizenship and the right of suffrage Said document further recited "that inasmuch as the testimony of said witness is required in a criminal case pending in Llano county: Now, therefore, I, Joseph D. Sayers, Governor of Texas, do, by virtue of the authority vested in me by the Constitution and laws of this state, hereby, for the rea sons specified, now on file in the office of the Secretary of State, grant the above-named convict a full pardon, and restore him to ful citizenship and the right of suffrage." This instrument was objected to on the ground that it was not the original pardon, nor a certified copy, but that it affirmatively showed on its face that another pardon had previously been granted, and that therefore the executive power of the Governor had been exhausted, and that said paper did not constitute a pardon. Of course, this was not a certified copy of an existing pardon, and we may reject that portion of the paper; but the remainder certainly contains the essential elements of a pardon, and as such it authorized the witness to testify. Of course. it will not be contended that a pardon cannot be granted after the expiration of a prisoner's term of service. Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330. Nor eam the motives of the executive be questioned in the courts as to his reason for granting a pardon. He may have granted the pardor in the present case, as recited, in order to restore the competency of the witness to testify. This may have been a misapprehension as to the effect of the original pardon but it was none the less a pardon. v. State, 21 Tex. App. 1, 17 S. W. 430.

Martin

Appellant assigns as error the action of the court in permitting the witnesses Hargan, Wallace, and Moses to testify that they had not promised Ike Barber that he would not be prosecuted upon a certain charge against him for the theft of hogs if he would testify to what he knew about the killing of Rowntree. This was objected to "because the testimony was calculated to support the testimony of Barber, whom the defendant had not attempted to impeach upon that issue; it being purely collateral (the witnesss