B. F. Temple v. The State, 15 Tex. Ct. App. 304

White, Presiding Judge. ¡No venue having been proven, so far as shown by the record before us, we will bé compelled to reverse the judgment of the lower court. In view of another trial, it may not be amiss to notice certain other questions raised and which are likely to arise again. 1. A sufficient predicate was laid for the introduction of the deceased’s dying declarations, under the statute. (Code Grim. Proc..

Art. 748.) The declarations had been reduced to writing, and when the writing was offered in evidence all that portion of the declaration not relating immediately to the fact of the homicide and its attendant circumstances was, on special exceptian by defendant, properly excluded as evidence. “ Dying declarations are admitted from the necessity of the case to identify the prisoner and the deceased; to establish the circumstances of the res gestee, and to show the transactions from which the death results.

When they relate to former and distinct transactions, they do not come within the principle of necessity.-’ (Whart. Crim. Evid., 8 ed., sec. 278.) 2. It was objected that paroi evidence was admitted to prove that the town of Jacksonville was an incorporated town, and that the deceased was, at the time he was killed, the marshal of said town.

In some of the States, Alabama for instance, the rule is that “courts will judicially notice the charter or incorporating act of a municipal corporation, without being specially pleaded, not only when it is declared to- be a public statute, but when it is public and general in its nature or purposes, though there be no express provision to that effect.” (1 Dillon on Municipal Corp., 3 ed., sec. 83.) Such is not the rule in this State. With us a district judge is not charged with notice or judicial knowledge that any designated locality is an incorporated town or city. (Patterson v. The State, 12 Texas Ct.

App., 222.) And the reason for the rule as it obtains with us may be found in provisions of our law with regard to municipal corporations and the mode and manner of their creation. ¡No special legislative act is required to create or legalize such corporations. Any town of two hundred inhabitants or any city may of itself become incorporated by complying with the general laws upon the subject. (Rev.

Stats., Arts. 340 to 541 inclusive; Acts 17 Legislature, pp. 03, 115, 116, 117.) After an election has been held under the general laws, and “corporation” is carried, all that is necessary to invest the town with all the rights incident to corporations under the law is that the county judge “shall, within twenty days after the receipt of the returns, make an entry upon the records of the Commissioners’ Court that the inhabitants of the town are incorporated,” etc. (Rev.

Stats., Arts. 511 to 514.) It could scarcely be expected that the courts should judicially know of all such and when they have been made and placed on the records of the County Commissioners’ Court. Such acts of incorporation, it would seem, should be proven aliunde. How proven? We believe the correct rule is prescribed by Mr. Dillon. He says: The primary evidence of a special charter or act of incorporation in this country is the original or an authenticated copy, or a printed copy published by authority. But if primary evidence cannot be had, paroi or ■secondary evidence of its existence is admissible.

Thus, where a public corporation had existed for a long space of time (in the instance before the court for forty years) the court admitted proof of its incorporation by reputation, the original act not being found, and it being probable that it had been destroyed by fire. So, evidence that a town has for many years exercised corporate privileges, no charter, after search, being found, is competent to go to the jury to establish that it was duly incorporated.

And where there is no direct record evidence that a place has been incorporated, and it is sought to show the fact of incorporation from circumstantial evidence, the question is ordinarily for the jury and not the court; that is, the jury under the circumstances determine whether there is or is not sufficient ground to presume a charter or act of -incorporation, or the due establishment and existence of a corporate district under some general act.” (1 Dillon, 3 ed., sec. 84.) If the incorporation be by legislative act, then under the rule the charter would be primary evidence, before the secondary could be resorted to.

If the corporation be created under our general law above referred to, the best evidence would, perhaps, be a certified copy of the entry made by the county judge on the records of the Commissioners’Court (Rev. Stats., Art. 2252); and, failing to find or be able to produce that, then secondary evidence in accordance with the above rule may well be resorted to. 3. Deceased Clark’s official character could be shown by proof of the fact that he was de facto marshal, and recognized as such by - the proper municipal authorities, without the necessity of showing his appointment and qualification as such officer. 4.

In addition to the fact that no venue is shown to have been proven, another omission is apparent in this voluminous statement of facts, and that is that the time or date of this homicide is not made to appear by the evidence of a single witness who testified. It does occur to us that the proof should have shown at least that the homicide was committed prior to the filing of the indictment; and to support a conviction for manslaughter it should further show that that offense was not barred at the time of the presentment of the indictment. (White v. The State, 4 Texas Ct.

App., 488.) An allegation in the indictment of a time within the statute is no evidence that is binding either upon the State or defendant; either may prove any other date prior to indictment, and in cases of less grade Than murder the State must establish a time or date at which the prosecution would' not be barred.

We would here take occasion to suggest that it would be a good practice, and save all such questions, for the judge, in certifying the statement of facts, to certify, in every instance where the facts warrant it, that the time of the commission of the offense, the venue, and the identity of the prisoner were fully proven. Opinion delivered December 14, 1883. The charge of the court is complained of, and it is also urged that the court erred in refusing the specially requested instructions asked in behalf of defendant.

So far as the general charge of the court is concerned, it presents the law fully and explicitely as applicable to the facts. So far as the special instructions are concerned, the general charge embraced those that were proper to be given, and there was no error in refusing to give them.' For the errors above pointed out, the judgement is reversed and the cause remanded. Reversed and remanded.