(289 S. W.)

of the bank at the time the deal was made., able light to plaintiff, do not disclose any Usually, the president of a corporation is its cause of action in favor of plaintiff against executive officer, and, if it could be said that defendant John R. Weaver. The statute of the cashier was acting as president of the frauds (section 2172, R. S. 1919) clearly ap bank at the time of the transaction .com-plies as to this defendant. He received no plained of, it would add nothing to defend- benefit from the representations, except such ants' allegations, as the president would as might result to the bank by reason of the have no more right to enter into such an representations and as would accrue to him agreement or make such representations as a stockholder and officer of the bank, than did the cashier, without express author- which from the authorities cited supra would ity from the bank. Sedgwick v. Bank, supra. not be sufficient to take the case out of the We are bound to conclude that the second statute of frauds. See, also, Wells v. Prince, count of the petition, which is the only part 15 Gray (Mass.) 562; 27 C. J. 172. of it left in the case, fails to state a cause The judgment is affirmed. of action and that the action of the court was proper. Liggett v. Bank, supra.

[6] The facts, taken in their most favor

ARNOLD, J., concurs.
TRIMBLE, P. J., absent.

2. Criminal law 363-Prerequisite of res after the pistol was fired Dunbar came to his gestæ statement is spontaneity. house.

The witness Perkins said that he lived 300 or 400 yards from Dunbar's house, maybe a little farther; that he heard the shooting there on the night of the alleged burglaryheard two shotgun shots first, and later a Being unable to find justification for the pistol. On direct examination he testified admission of this testimony, the only possi

(289 S. W.)

ble claim for same being res gestæ arising | This was hearsay. It bore upon the most from the fact of the nearness in point of contested issue in the case, viz. whether the time, and there being no showing of any of children were in destitute and necessitous the other requisites of res gestæ, we are con- circumstances. The admission of the testistrained to hold the admission of this testi- mony was error. We are not able to say that mony erroneous. It was upon a very vital it may not have been used by the jury to the issue in the case, and may have been appro- injury of appellant. priated by the jury to the injury of the appellant.

For the error of the court in admitting same, the judgment is reversed, and the cause remanded.

For the error mentioned, the judgment is reversed, and the cause is remanded.

HENNON v. STATE. (No. 10424.)

Ex parte WOODS. (No. 10381.) (Court of Criminal Appeals of Texas. Dec. 15, 1926.)

(Court of Criminal Appeals of Texas. Dec. 15, Criminal law

1926.)

Criminal law 419, 420(11)—In prosecution of father for child desertion, witness' conversation with mother relative to destitute condition held inadmissible.

In prosecution of father for child desertion, witness' conversation with children's mother relative to children's inability to attend Sunday school because of insufficient clothing held hearsay and erroneously admitted.

Appeal from Tarrant County Court at Law; P. W. Seward, Judge.

W. J. Hennon was convicted of child desertion, and he appeals. Reversed and remanded.

1144(1⁄2)—Judgment will be

upheld, in absence of statement of facts and inability to appraise bills of exception.

Court of Criminal Appeals will uphold lower court's judgment on presumption of regularity, in absence of statement of facts and being unable to appraise bills of exception.

Appeal from District Court, Cooke County; W. S. Moore, Judge.

Application by Joe Woods for writ of habeas corpus. Judgment remanding petitioner, and he appeals. Affirmed, and petitioner remanded.

E. W. Neagle, of Sherman, for appellant. Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of

Houtchens & Clark, of Fort Worth, for ap- Groesbeck, for the State. pellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J. Conviction in county court at law No. 1 of Tarrant county of child desertion; punishment, fine of $100 and confinement for one year in the county jail.

LATTIMORE, J. If we comprehend thi record, it is an appeal from a judgment of the district court of Cooke county, based upon the hearing of an application for ha beas corpus, by which judgment appellant was remanded to the custody of the sheriff. The application for said writ is in the most general terms, alleging that appellant is restrained of his liberty by the sheriff of said county without valid writ or process justify

There are a number of bills of exceptions in the record, which we do not discuss, because, after examination, same appear to re-ing such restraint. It is alleged in the apveal no error.. Bill of exceptions No. 1 sets up that the state introduced upon the trial hereof Mrs. Mercer, and over objection she was permitted to testify as follows:

plication that copies of all writs, warrants, and processes "on file in the clerk's office of Cooke county" are attached and made a part of such application.

"On the 12th day of January of this year some An inspection of the record shows that no of the other ladies of the church and myself writs, warrants, or processes of any kind were making a house to house canvass in the were attached to said application. There interest of the Sunday school. We were trying appear in the transcript a number of docuto increase our Sunday school, and it fell my lot ments, wholly without any identification, eito visit this home, and when I asked Mrs. Hen-ther by stenographic notes or by being marked non if her children were in Sunday school she stated that they were not because they didn't have sufficient clothing."

exhibits, or by being attached to any other document. There is no statement of any facts heard by the court upon presentation to him It needs no analysis or discussion to make of said application. The clerk certifies that plain the proposition that this witness was the transcript contains a true copy of the origpermitted to testify to the statements made inal papers in cause No. 7373a styled "The by appellant's wife concerning the destitute State of Texas v. Joe Woods." Several bills and necessitous condition of her children. of exception appear in the record, seemingly

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taken to actions of the court in the case of, remarked to the jury "that eleven men were the State of Texas v. Joe Woods, but noth- more apt to be right than any one man, and ing identifies the case in which such bills of that they should retire and agree upon a exception were taken with any ex parte pro- verdict." To this remark an exception was ceedings or hearing under an application for reserved. habeas corpus. The entire record presents documents and copies of proceedings, the force and application of which are wholly left to conjecture.

[1, 2] The judge presiding at the trial is forbidden by statute to "make any remark calculated to convey to the jury his opinion of the case." Article 707, C. C. P. 1925. Having before us no statement of facts, Somewhat similar restrictions are placed upand being unable to appraise appellant's on the court by articles 658 and 768, C. C. P. bills of exception, we are compelled, upon the 1925. Transgressions of these limitations, presumption of regularity, to uphold the when calculated to harm the accused, have judgment rendered by the lower court, and been uniformly held to be prejudicial, unremand the appellant; and it is accordingly less the contrary appears from the record. so ordered.

See English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632; also Vernon's Tex. C. C. P. vol. 2, p. 698, and notes on succeeding pages. Apparently the record in the present case demonstrates that the making of the improper remark did not operate to the preju

(Court of Criminal Appeals of Texas. Dec. 8, dice of the accused. It is made manifest

1926.)

1. Criminal law 11661⁄2 (12)-Remarks of presiding judge, conveying opinion of case to jury, if calculated to harm accused, are prejudicial (Code Cr. Proc. 1925, arts. 658, 707,

768).

Remarks by presiding judge, calculated to

convey opinion of case to jury, in violation of Code Cr. Proc. 1925, arts. 658, 707, and 768, are prejudicial, if calculated to harm accused, unless contrary appears from record.

2. Criminal law 1174(1)-Court's remark that eleven men were more apt to be right than one held not prejudicial, in view of verdict (Code Cr. Proc. 1925, arts. 658, 707, 768). Remark of trial judge to jury, in violation of Code Cr. Proc. 1925, arts. 658, 707, and 768, after being informed they were divided eleven to one only as to amount of punishment, that eleven men were more apt to be right than one, and that they should agree on verdict, held not prejudicial, in view of jury's final agreement on minimum punishment.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Sam Bayless was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Affirmed.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

MORROW, P. J. The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The evidence is quite sufficient to sustain the conviction. After deliberating several hours, the jury came into open court and reported that they were unanimous in their agreement upon the appellant's guilt, but that they were divided, eleven to one, on the amount of punishment. The court then

by their report to the court that the jury was unanimous in its finding of guilt, but were divided alone upon the penalty. It follows that either one juror or eleven jurors favored a higher penalty than the minimum. The final agreement upon the minimum is incompatible with the theory of injury.

The judgment is affirmed.

DAVENPORT v. STATE. (No. 10346.)

(Court of Criminal Appeals of Texas. Dec. 8, 1926.)

Criminal law 1131 (5)-Appeal from murder conviction will be dismissed, where defendant escaped pending appeal and did not subsequently voluntarily surrender (Code Cr. proc. 1925, arts. 824, 825).

Under Code Cr. Proc. 1925, art. 824, appeal from murder conviction will be dismissed, on showing by affidavit, under article 825, of defendant's escape from jail pending appeal without subsequent voluntary surrender.

Appeal from District Court, Tom Green County; J. F. Sutton, Judge.

Gratton Davenport was convicted of murder, and he appeals. Appeal dismissed. Wright & Gibbs, of San Angelo, for appellant.

Collins & Jackson, of San Angelo, Critz & Woodward, of Coleman, Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

HAWKINS, J. Appellant is under conviction for murder of Sam Rodgers; the punishment being confinement in the penitentiary for 99 years.

(289 S. W.)

Pete Bean was convicted of unlawful trans

C. C. Small, of Wellington, for appellant. Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

The conviction was had in March, 1926. ! Pending appeal to this court, appellant was portation of intoxicating liquor, and he apconfined in the jail of Tom Green county in peals. Reversed and remanded. custody of J. R. Hewitt, the sheriff. This officer makes affidavit that appellant and five other prisoners escaped on the night of August 13, 1926, by sawing out of the jail; that appellant was recaptured some two hours later. The affidavit negatives any voluntary surrender to the officer. Article 824, C. C. P. 1925, reads:

"If the defendant, pending an appeal in a felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape, being made to appear, the court shall, on motion of the State's attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped."

Article 825 provides for affidavit conveying to this court information of escape. Our state's attorney has filed a motion to dismiss the appeal, based upon the statutes referred to and the affidavit now on file, showing the escape. See, also, Gilbert v. State, 83 Tex. Cr. R. 348, 203 S. W. 892; Gibson v. State, 83 Tex. Cr. R. 435, 203 S. W. 893; Clay V. State, 81 Tex. Cr. R. 637, 197 S. W. 1106; Harris v. State, 94 Tex. Cr. R. 182, 249 S. W. 1053; Mitchell v. State, 99 Cr. R. 32, 265 S.

W. 700.

This court having lost jurisdiction by the express terms of article 824, supra, the state's motion must be sustained, and the appeal is

dismissed.

BEAN v. STATE. (No. 10531.) (Court of Criminal Appeals of Texas. Oct. 13, 1926. Rehearing Granted Dec. 15, 1926.)

On Motion for Rehearing.

1. Criminal law 875(1)-Verdict agreeing to penalty of one year in penitentiary held insufficient (Code Cr. Proc. 1925, arts. 686, 693). Verdict in criminal case that jury "agreed to penalty of one year in penitentiary" held, in view of Code Cr. Proc. 1925, arts. 686, 693, to omit essential requirement that jury either find defendant guilty or not guilty.

2. Criminal law 893-Verdict should be liberally construed, and if jury's finding can be reasonably ascertained, be held good as to

form.

Verdict should receive liberal rather than strict construction, and, if finding of jury can be reasonably ascertained, it should be held good as to form.

MORROW, P. J. The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The indictment appears regular. The record is before us without statement of facts or bills of exceptions. No fundamental error has been discovered or pointed out. The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J. When the case was considered on original submission in some way appellant's brief escaped our attention and the case was thought to be one of many which reach this court where the appeal is for delay only. On motion for rehearing it is pointed out that really there is a serious question as to the sufficiency of the verdict consideration regardless of the facts proven. to support the judgment and this demanded

The verdict

[1] The record discloses that no plea of guilty was entered by appellant, but, on the contrary, that he entered a plea of "not guilty," and the case went to the jury on contested issues under that plea. returned by the jury reads as follows: "We, the jury in the case against Pete Bean (defendant), all agree to penalty of one year in the penitentiary." On motion for new trial the verdict was attacked as insufficient to uphold the judgment because there was no finding of guilt by the jury. That there is no direct announcement in the jury's verdict that they find appellant to be guilty is not open to question. Can it be supplied by inference on the theory that they would not have fixed a penalty unless they also believed him guilty? This is answered we think by the positive terms of the statute. Article 686, C. C. P. 1925, reads:

"A verdict is a written declaration by a jury of their decision of the issues submitted to them in the case."

And article 693, C. C. P. 1925, reads as follows:

"The verdict in every criminal action must be general. Where there are special pleas upon which the jury are to find, they must say in their verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, they must find that the defendant is either 'guilty' or 'not guilty,' and they shall assess the punishment in all cases where the same Appeal from District Court, Collingsworth is not absolutely fixed by law to some particuCounty; R. L. Templeton, Judge. lar penalty."

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