McCue v. State , 75 Tex. Crim. 137 ( 1913 )

The opinion deciding the case was written some time ago and motion for rehearing overruled. The adjournment for the term came shortly afterward and I have not taken up the case previously with a view of writing out my dissenting views.

In the original opinion it was stated by the writer thereof that the "question presented by this record is, was appellant one of the participants in the crime?" That was one of the questions, but there are very important legal questions presented which were of crucial interest not only to the defendant but to a correct view of the law. It was a question, and a serious question, whether appellant was a participant in the crime. The jury found that he was, and my brethren approved that finding. I more than questioned the fact that appellant was a participant in the crime. This was a case of murder, and if appellant participated, as the accomplice stated, it was a horrible killing, and done in the perpetration of robbery. The testimony of that accomplice comes in such questionable shape and is contradicted at so many points by the various witnesses for the State, that I hardly feel willing to say that this young man ought to be in the penitentiary for the balance of his life on such testimony, especially in view of the fact that an alibi clear, forcible andstrong was shown, which placed him in such position that he could not have been a participant in the homicide. The accomplice Pringle was contradicted so often about his relation to appellant during the day preceding the crime, or in the alternative he contradicted the other State's witnesses so that his testimony was hardly worthy of belief, independent of the fact that he was an accomplice and ostracized by the law for this reason. It seems also that this Pringle was put in the jail and for some time in the death cell and made a contract with the State before he found the light of day from that apartment, to testify for the State. It is a serious matter to deprive a citizen of life and liberty on the testimony of this sort of witness, and this character of evidence.

Bill of exceptions No. 10 was reserved to the introduction of a number of letters found about the body of the deceased. These letters were from the relatives of the deceased, containing admonitions and expressions of endearment and matters of that sort at some length. Various objections were urged, and the court seems to have permitted them to go before the jury, and my brethren have sustained the ruling, on the theory that the letters were admissible, as well as their contents, on the question of identity of the deceased. If the letters were addressed to Earl Mabry, and there was an issue as to whether this was the body of Earl Mabry, or it became necessary to resort to the address of the letters in order to show that probably the name of the deceased was Earl Mabry, there might be some cogency in this statement or conclusion of the majority opinion. I am led to believe their holding was based upon Campbell v. State, 8 Texas Crim. App., 90; at least it is cited. That case, in my judgment, is not applicable. That was a case of circumstantial evidence. The identity of deceased in that particular case was of serious moment, but that there may be no mistake about the condition of that case on the line of which I have stated, I take this quotation from it: "There was no eyewitness to the homicide. No one who saw the body was able to identify it or was acquainted with John Booth, for whose murder the appellant was on trial. By a personal description, however, and articles found on and near the body, the prosecution was enabled to identify it as that of a man who passed the night of the preceding September 27th at the house of John Galbraith, two miles south of Weatherford, and who, in May, 1878, was known to Galbraith as John Booth." Further quoting from that opinion I find this language: "We see no good reason why the court should have excluded evidence of the contents of the valise of deceased, or the memoranda in the blank book and the mail contract found therein, since these were circumstances going to establish the identity of deceased, who appears to have been a stranger to all the witnesses who saw the body after the homicide." The Campbell case was one purely of circumstantial evidence, there being no eyewitness to the homicide as an inspection of that case will show. The issue of identity was an important issue and could not be proved otherwise. There was no question of that sort in this record. The body of Earl Mabry was as thoroughly recognized as was possible for a body of a deceased to be recognized and identified. If it was necessary or proper to introduce the letters, the State was not authorized to go beyond the fact that the letters were addressed to Earl Mabry and signed by the parties who could testify that they wrote the letters found on his body, but the contents of these letters, the details and statements containing advice and admonitions and expressions of love and affection and endearment and other matters of that character, tended to arouse the passions and feelings of the jury against the accused and in favor of the deceased, as well as arouse the passions and feelings of the jury in favor of deceased's mother, sister and other relatives against appellant, who was on trial for the murder of the son and brother. I agree with the Assistant Attorney General in this statement of his brief: "But it was probably not admissible to have the contents of these letters read to the jury. I am unable to see how it could have been admissible or why it was thought material or relevant to any issue to read the contents of these letters."

Bill No. 9, along the same line, was reserved to the introduction of a day book in evidence, found at the body of the deceased and the contents of it; the writings and entries and all matters of that sort were permitted to go to the jury. The majority, affirming the case said: "The time book was not admissible to show these facts, if it did so show, but was admissible only on the question of identity of deceased and the objections to that portion of the argument of State's counsel should have been sustained." It seems that this formed the basis of another bill of exceptions to the effect that the county attorney made an inflammatory argument for the purpose of arousing the passions, sympathies and prejudices of the jury, as shown by bill No. 4. How the entries in that account book, showing various dates and figures and where he had worked and pay he had received during the part of his life, could have served to identify him is just a little difficult to understand, but there was no issue as to his identity. The defendant did not controvert his identity, and it was proven by many witnesses to be the body of Earl Mabry. So there could be no disputed issue, and all this testimony was erroneously admitted, even under the above statement of the majority opinion. The majority hold the argument of the county attorney was error, and that the book was not admissible to show the purported facts therein recited, but that although error was committed, it was harmless. To cure this as far as could be done under the circumstances, the appellant asked a special charge seeking to remove the error. This was not given. The damaging effect of this sort of testimony and argument was dangerous and illegal and ought not to have been permitted. It was and is clearly reversible error.

Another bill of exceptions was reserved to the State proving that Gertrude Wilson in 1907 lived on Market Street with Risa Beasley, next door to Fannie Howard, and that in September, 1907, she heard of the killing of deceased and at that time she was acquainted with appellant and had often seen him at the Beasley woman's house. Another bill shows the State placed Will Chick upon the stand and proved by him that in the fall of 1907 he was deputy sheriff of Dallas County and knew appellant and arrested him in this case. The State went further even than that and showed by him that at the time he arrested appellant that he did so on Market Street. Pursuing this line they proved by him further that the arrest occurred on South Market Street. Having reached this point the State was permitted to prove where the arrest was made with reference to Fannie Howard's place, and he testified: "I arrested him in front of Fannie Howard's place." The State then propounded to him the following question: "Her place — what character of place is it?" and the witness answered, "A sporting house." He was then asked if it was a saloon, and he answered, "Yes." Pursuing this further he was asked and permitted to testify that it was a house of prostitution. In this same connection, the prosecution also, as shown by another bill, while the accomplice Pringle was on the stand, was permitted to prove by him that he had frequently seen appellant at Fannie Howard's place of business, and the first time he ever met him was at Fannie Howard's saloon on Market Street. Then this question was asked him: "That was a negro house of prostitution?" The witness not answering the question, it was repeated in this form: "State what kind of a house of prostitution it was, with reference to color," and witness answered, "A negro sporting house." All this occurred when the State was making out its case in chief and introduced as original testimony.

Another bill shows that the State was permitted to prove by Briggs and McDougal that several days after the commission of the crime they had seen appellant buggy riding with negro prostitutes, and had seen him drive up in front of a negro house and that negro women lived in the house. In regard to the testimony first alluded to in the series of bills of exception, that is, with reference to having associated with the women Beasley and Fannie Howard, etc., it is conceded to be erroneous, but it was held harmless on the theory that appellant was guilty of murder in the first degree, and received a life sentence instead of the death penalty.

I agree with the Assistant Attorney General again, as far as he has gone with reference to the testimony as set out in bill No. 3, above referred to, that is, the testimony of the witness Will Chick, in which he says: "Bill No. 3 complains that Officer Chick while on the stand was permitted to testify that on Thursday after the killing he arrested defendant and that he arrested him at the house of Fannie Howard. That Fannie Howard was a negro whore and ran a negro saloon and whorehouse. Appellant insists that this testimony was not admissible for any purpose and was very damaging to him. I submit that I do not see the materiality or relevancy of this testimony, and evidently counsel for the State knew it was irrelevant and that it was introduced for the purpose of showing that appellant was a habitue of a negro whorehouse, etc." There is no merit in the proposition that the admission of this testimony was harmless error. The testimony was of a very damaging character. Here was an issue of guilt before the jury, an accomplice and self-confessed murderer contradicted by many of the State's witnesses on everything except the immediate facts of the killing, which they did not see, testifying to the homicide for the purpose of robbery. On the other hand, appellant denied any connection with it, and proved by his witnesses that he was sick at home in bed at the time and was not there. Now, we have the testimony of these witnesses to the effect that the officer arrested appellant, indicating his view of the guilt of the man; that he arrested him at a negro saloon, in a negro whorehouse, and that his associates were negro whores, and that he was a habitue of negro whorehouses. Appellant had not placed his reputation or character in issue; his life was in the balance before the jury, and the issue sharply drawn of his connection with the killing, the State making a case by a self-confessed murderer, and the defendant meeting that by evidence that he was not present and knew nothing about it, and had no connection with it. This character of testimony, that the witness arrested appellant, believing he was guilty; he arrested him at a negro saloon and whorehouse, and that he habitually associated with negro whores, was thrown in the balance against him when he had not placed his character or reputation before the jury. If there could be more damaging testimony than this, it would be difficult to conceive it could be. There are a number of cases which hold, and so far as I know without exception, that the State will not be permitted to show the character of the associates of the accused. In Holsey v. State, 24 Texas Crim. App., 35, it is stated: "There is no rule of law which will permit an inquiry into the character of defendant's associates, and in permitting such inquiry the trial court erred." In Arnold v. State, 28 Texas Crim. App., 480, it was said: "It was also material error to permit the State to prove over defendant's objections, the bad character of the women who resided in the vicinity of defendant's residence and with whom the defendant sometimes associated. Such evidence is irrelevant and incompetent. Holsey v. State, 24 Texas Crim. App., 35." See Hudson v. State, 41 Tex.Crim. Rep.; Jennings v. State, 42 Tex.Crim. Rep.. In all these cases the court reversed the judgment, holding that the testimony was hurtful and damaging, and being erroneously admitted necessitated a reversal. The State can never put the defendant's reputation in issue until he has first introduced evidence on that line. The State used all this testimony as original evidence. How testimony could be more hurtful would be difficult to conceive. But this is met with the statement that appellant got the lowest punishment for murder in the first degree, that therefore it was harmless. The trouble is, the defendant was convicted, and of murder in the first degree, and it may be that if this and similar testimony had not been introduced the jury might have solved the issue in his favor and acquitted. It seems there had been previously four hung juries in the case, nearly all of the jurors in favor of acquittal. If the guilt of the accused had been conceded, or there was no issue upon the question of his guilt of murder in the first degree, then there might be some merit in the statement that it was harmless, but no evidence is harmless which when erroneously admitted tends to solve the issue against the accused. The issue here was one of guilt. The law declares him innocent until he has been proved guilty beyond a reasonable doubt. The State had introduced a self-confessed accomplice who testified that he and appellant did the killing. The corroboration was anything but satisfactory. All of this testimony was introduced to show that Pringle met him for the first time at a negro whorehouse and by other witnesses that he was associating with negro whores, going buggy riding with them and was arrested at a negro whorehouse. The issue is sharply drawn that he was not guilty, and yet this is held harmless error. The jury thought it was very harmful and gave him murder in the first degree, solving the question against him. I will here state that no error is harmless which brings about a conviction or tends to solve the issue against the accused and in favor of the State, either to bring about a conviction, or in case of guilt it tends to bring a verdict higher than the minimum or lowest punishment. All such evidence is essentially harmful. Just what effect this sort of illegal testimony had upon the minds of the jury can only be inferred or concluded from the fact that the verdict reflects the belief of the jury that he was a man guilty of murder. This language is found in the opinion of the court in this connection: "And if the jury had given the death penalty, then it might be said that this testimony inflamed their minds against appellant, but they did not assess that punishment but gave him the lowest punishment the law authorized for the crime submitted to them, so evidently this testimony created no prejudice in the minds of the jury, as it would not and could not affect his defensive theory and testimony, and if it did tend to support the State's evidence and theory it would be admissible for that purpose. If error there be, in admitting this testimony, it would not call for a reversal of the case." Defendant did not testify. His witnesses, who were his relatives, testified to an alibi. This testimony evidently impressed the jury with the fact that his alibi was not true. It solved all the questions against him, or tended to do so by inflaming their minds against him because he associated with the people mentioned.

Speaking of this matter in Malcolmson v. State, 25 Texas Crim. App., 267, Judge Hurt uses this language: "If, therefore, in a case where there is a conflict of testimony, or a case in which the jury would be justified, from the meagerness of the evidence, in finding a verdict of not guilty, and still the evidence is such, as to require an affirmance of the judgment by this court, if the jury should convict, then the admission of incompetent evidence with the slightest tendency to injure or to place the accused in an odious light before his jurors should, and will be ground for a reversal of the judgment." To the same effect is Somerville v. State, 6 Texas Crim. App., 433. In that case the court said: "When a defendant is on trial for a capital felony it is a matter of the highest importance to him that no improper testimony be admitted against him, over his objection."

Mr. Wharton says: "In criminal cases courts will rarely presume that the particular evidence which has been wrongfully admitted could have no influence on the deliberations of the jury." In the Somervell case appellant received the minimum punishment for murder in the first degree, as did appellant in this case. Possibly it is well enough to cite a few cases showing the illegality of this testimony and its prejudicial nature: Wharton's Criminal Evidence, vol. 1 (10 ed.), 41; Thompson v. State, 38 Tex.Crim. Rep.; Dysart v. State,46 Tex. Crim. 52; Conway v. State, 33 Tex.Crim. Rep.; Staten v. State, 32 Tex.Crim. Rep.; also in point see6 Wis. 417, 76 Wis. 99, 34 N.Y. 233.

Another bill of exceptions shows that after appellant had closed his case the State put Amos Clem on the stand as a witness and proved by him that he saw appellant on Main Street in the City of Dallas in the block east of the courthouse going in a westerly direction; that he saw him in the evening between the hours of one and three o'clock, and that at the time he saw him he heard someone say to him, "Hello, McCue, where are you going?" and heard the man addressed as McCue say in reply, "I am going to the cement plant after a while." The witness further testified that on the night of the offense, about ten minutes before seven o'clock, he saw defendant and two other boys, one of whom was carrying a grip, at the corner of Main and Jefferson Streets, just east of the courthouse, in the City of Dallas, and saw the three going north across Main Street and into a saloon on the northeast corner of Main and Jefferson Streets. The bill also shows after this testimony was introduced appellant placed J.C. Clem, a cousin of Amos Clem, on the stand and proved by him that he resided west of Dallas and that in 1907 he lived near Grand Prairie, about ten miles from Dallas, and that he was acquainted with Amos Clem, his cousin, and that he remembered hearing of the finding of the deceased's body, and heard of this on Sunday, and that he first heard it from L.A. Clem, who was a brother of Amos Clem, and that on the afternoon of the day that Amos Clem had testified to having seen appellant on the streets of Dallas, that witness J.C. Clem was at the residence of L.A. Clem, and that Amos Clem was there at the same time, and that this was about five o'clock or between four and five o'clock on said afternoon, and that Amos Clem arrived at said house a few minutes after the witness went there, and that Amos Clem was sick at the time, and fell over on the porch with a sick spell, and that the witness got a pail of water and bathed his head for an hour or two. That Amos Clem was in the habit at that time of having such spells, and that Amos Clem left said house about dark and went from there to his home, the said Amos Clem then living about ten miles from Dallas. After these proceedings, the bill shows defendant rested his case, and the State then placed upon the stand Samuels, who testified, among other things, that he had seen State's witness, Amos Clem, in the City of Dallas near the courthouse on the Saturday evening of the night of the killing, and had seen him at the corner of Jefferson and Commerce Streets, immediately east of the courthouse, about six o'clock. This witness was then permitted to testify that the State's witness, Amos Clem, had told him, Samuels, that he saw appellant in Dallas on the day of the killing, and then the State propounded to him the following question: "Did he tell you that he heard a fellow speak to him and say to him, `Hello, McCue, where are you going?' and that McCue told him, and said to him, `Going to the cement plant after a while?' and witness answered, `Yes, sir.'" This witness was also permitted to testify that Amos Clem told him this on the Saturday following the murder, in Samuels' store. The bill shows that appellant had not impeached Amos Clem by any witness as to any statement that Clem had ever made in court or out of court, and that he had laid no predicate for any hearsay statements out of court, and had not offered any evidence or any statement on the part of the State's witness touching said matters whatever, and that appellant had not shown and had not offered to show that said witness had ever made a statement in court or out of court, as to whether or not he had seen appellant in Dallas upon the afternoon or the night in question. In other words, when Amos Clem testified that he was in Dallas upon said afternoon, and had seen appellant upon such afternoon, and had seen him just before seven o'clock upon said night, and had seen him with other companions at or about a saloon, the appellant then placed the witness' cousin upon the stand and proved by him that the State's witness at about five o'clock in said afternoon was ten miles from Dallas, and was sick, and that after the defendant's witness had gotten water and bathed his head for about an hour or so, that State's witness then went to his home, which was in the same vicinity, about ten miles from Dallas. In other words, the defense proved a complete alibi as to the witness Amos Clem. The State was then permitted to prove all these things by Samuels and what Amos Clem told him and other matters heretofore stated. And Samuels was further permitted to testify: "Do you know how Amos Clem came to be summoned as a witness in this case? A. Yes, sir. Q. How? A. I got him as a witness. Q. You reported him to the county attorney? A. Yes, sir. Q. Did you report the fact to the county attorney? (meaning the fact as claimed by Samuels, that Clem, that is, Amos Clem, had told him, Samuels, on the Saturday immediately following the Saturday night that deceased was killed, and while the said Amos Clem was in Dallas, that he had heard a man say, `Hello, McCue, where are you going?' and that the man addressed as McCue was Frank McCue, the defendant in this case, and that he made the reply: `Going to the cement plant after a while'). Q. Did you report the matter to the county attorney? A. Yes, I reported it to Mr. Llewellyn." All these matters were objected to on various grounds, and among others because there had been no impeachment or attempted impeachment. These grounds cover nearly a page and are unnecessary here to repeat. The best that can be said of this testimony for the State is, Amos Clem testified one way about his whereabouts and conditions, etc., on Saturday evening, and the other Clem testified exactly the contrary, and placed him ten miles away from where Amos Clem said he was. This was simply a contradiction of the testimony by one as against the other. It was not impeachment, and it did not authorize the State to introduce the testimony complained of and above mentioned. A more palpable violation of the law could not be well imagined, and it was on crucial points in the case. Appellant's witnesses testified he was at home sick at that time during the whole evening and night. The other witness testified he saw him on the street in Dallas in contradiction of what McCue's witnesses had stated in their alibi for him. The other Clem put State's witness Amos Clem ten miles away, where it was not possible for him to see McCue. There was no impeachment except impliedly by the fact that the defendant was contradicting one Clem by the other Clem. If Amos Clem was telling the truth, witness and McCue were on the street in Dallas near the courthouse stating he was going out to the cement plant after a while. It seems the killing occurred in the direction of the cement plant that night. Now Samuels is permitted to go on the stand and testify to what Amos Clem told him about all these matters, and that he had secured him as a witness for the county attorney. I do not believe any rule of evidence or law can be cited to sustain this ruling of the court. It was not permissible to sustain this witness unless the reputation of that witness was attacked in some respect, and then the sustaining evidence must meet such attack as was made upon it.

Another question is presented of serious moment, and in my judgment is clearly reversible, and in fact demands in the interest of justice that this judgment should have been reversed. Appellant placed the members of his family, his father, mother, sister, etc., upon the witness stand and proved by them an alibi, which covered the entire Saturday and Saturday night, showing that he was sick at home and could not be and was not in Dallas, or at the place of the homicide, and that in fact he was at home sick at the time some distance from where the homicide occurred. It was necessary for the State to meet this testimony. The issue was sharply presented and strongly supported. During the investigation of these witnesses by the State counsel gave them a very rigid cross-examination and sought by every means possible that were in his power as an astute lawyer to break down this testimony and show it to be false. He attacked them on account of being related to him: interested in the case; interested on account of the boy's welfare at the hands of the jury, and all those things were displayed in the cross-examination, intimating through the testimony that these things warped their judgment and their truthfulness beyond the verge into falsehood. It is admitted as a fact that they were strangers in the county and to the jury who tried defendant. To meet this as best they could they offered evidence showing their good character and reputation for truth and veracity. These offered witnesses were men of high character, and were prominent citizens of Dallas County. They would have testified had they been permitted to do so to the high character and veracity and general standing of these witnesses. This testimony was excluded, and a bill of exceptions recites all these matters. I do not deem it necessary to go further into the statement than the above. The matters are clearly, succinctly and forcibly stated in a bill of exceptions, covering every imaginable viewpoint of it necessary for consideration here. Under all the authorities this ruling of the court was wrong. See Phillips v. State, 19 Texas Crim. App., 158; Crook v. State, 27 Texas Crim. App., 198, Tipton v. State, 30 Texas Crim. App., 530; McGrath v. State, 35 Tex.Crim. Rep.; Harris v. State,49 Tex. Crim. 338; Morrison v. Hartford N.H. Co. (Conn.), 52 Am. Dec., 344. In the case of Jacobs v. State, 42 Tex. Crim. 353, 59 S.W. Rep., 1111, referring to this principle of law, Judge Brooks rendering the opinion of this court, uses this language: "We have also held that where there is a conflict in the testimony and the witness is a stranger his testimony may be supported in the same way." I do not understand how the opinion of the majority was written in view of these authorities. This error was so palpable and clear that it ought not to be the subject of debate, unless all the decisions in Texas bearing on the question are overruled. They were not overruled unless inferentially.

There is another question that I will briefly notice. Among other things, a ground of the motion for new trial set up newly discovered testimony. This came in the form of affidavits, two of which may be mentioned, that by Garvin and the other by Carlton. Garvin, in substance, states that on Saturday night before he heard of the killing of Mabry the following Sunday morning, he went to get his cow which he had staked out on a lot immediately back of the residence of appellant's father, and that in so going to get his cow and returning with her he passed on two sides of the house of appellant's father; that as he was passing same he saw appellant in a hammock on the east side of the house and that at the time he so saw him there it was after sundown, getting dark, and he thinks it was about the hour of seven o'clock. He also says in this affidavit that he knew appellant well and knew the other members of appellant's family. He is positive in his statements and declares in his affidavit that he can not be mistaken. Garvin is shown to be a worthy man, and his high standing is supported by the affidavit of the county clerk of Dallas County. Carlton, then of Dallas, now of Denton, says at the time Mabry was killed he was living in Dallas and one block south of the McCue residence. He states that on the Saturday evening before the killing of Earl Mabry that Saturday night, and about which killing he heard the next morning, he came over from Dallas to his home in Oak Cliff; that after he got off the street car he passed by the McCue residence in going to his home; that at the time he saw no one at the McCue residence; that after remaining at his home for some little time he again started back to Dallas, and in doing so again passed the McCue residence; and he states that at the time he so passed said residence he saw appellant sitting on the porch with his head leaning up against a post of the porch; that he appeared to be sick; that affiant spoke to appellant and that appellant recognized the salutation. Carlton swears that he had known appellant for about fifteen years and was well acquainted with him and was also well acquainted with all the members of his family. That this was after four o'clock in the evening. This testimony was material and would go before the jury from unprejudiced sources. These witnesses were not related to McCue. The other witnesses who testified to the alibi were kinsfolks and closely related. The jury would naturally, as they evidently did from their verdict, look with a degree of suspicion upon the testimony of his family about the alibi, and evidently did not believe it else they would have acquitted instead of convicting. If these witnesses had been before the jury with their testimony it may have balanced the scale in favor of appellant and given him a verdict of not guilty. The main evidence for the State was a confessed accomplice and murderer with such corroboration as the State could pick up here and there. The testimony for the defendant was an attack on the State's witnesses as best could be done, supported by the testimony of his immediate family on the alibi question. The accomplice was testifying under a contract made in the darkness of a death cell. The McCue family was testifying for the son and brother. Here are two witnesses that are not interested, who testify positively to alibi facts, supporting the McCue family, and they were not interested in McCue or in the result of the case. The rule of cumulative evidence does not apply here. The McCue family did not know that these two witnesses saw the defendant under the circumstances they state. It is true, they testify appellant was at home sick, and one of these affiants would testify from his appearance, when he saw him sitting on the gallery, he thought he was sick, but he was there at home by both witnesses, and they cover from four to seven o'clock or later on in the evening at the very time that State's witnesses were placing him in Dallas preparing for the fatal tragedy. This should not be regarded as cumulative to the relatives who testified to the alibi. The same rule applies in applications for continuance. We have not applied the rule of cumulative evidence where the wife or husband or some close relative testifies to facts and a continuance is sought to prove by disinterested witnesses the same facts. This is a rule necessary to the ends of justice and right, because we are aware, as all humanity ought to be, that jurors do not regard with the same favor the testimony of a wife or near relative as they do the testimony of those who are not so related or interested.

I am aware that there is no particular service to be performed by a dissenting opinion, but the opinion is so far removed from what I conceive to be the law that I feel impelled to dissent; at least not be placed in the attitude of approving what was written. There are many cases where I have not entered my dissent that I have not approved, but in this particular case, and in some others, the matters are of such importance that I do not feel justified in my own conscience that I should let the opinion go unchallenged. I do this without intending any reflection on my brethren, except I can not agree to what they have stated to be the law. I do not believe the conviction of this boy ought to stand! I do not believe under this record he ought to be in the penitentiary! These legal errors, to my mind, are palpable, hardly needing authorities to show the errors much less authorities to sustain the views that I enter in this dissent. The statements of the bills of exception ought to carry conviction without reasoning or authority.

I therefore most respectfully enter my dissent, and think appellant ought to have had a new trial, and that this conviction has been wrongfully affirmed.