I do not think this case should be reversed, but should be affirmed. It is reversed on the ground that the court erred in sustaining the objection of the State to the following question propounded to the witness W.A. Randall: "What were you intending to do if the officers had not entered the house when they did?" The bill is voluminous about what was expected to be proven had the objection to this question not been sustained, but none of the things alleged in the bill would have been a legitimate answer to the question propounded. The answer alleged is that after denying having intercourse with the woman, if the officers had not come he would have answered he would have had intercourse with the woman. This would have been a complete answer to the question, and the other matters alleged would not and could not have been elicited by the question propounded, and what he intended to do would not be admissible. It is said in the bill, that it was desired to elicit from him why he had his shoes off; why he was putting his pants on, etc. If that is the information desired to elicit, proper questions should have been propounded to elicit such information, and doubtless if such questions had been propounded, the court would have admitted the evidence, as the State had proven he had his shoes off and was putting on his pants when the officers entered the room. But the question in fact propounded could not and would not inform the court that it was these matters they wanted an explanation of given, and such explanation could not have been legitimately given in answer to the question to which the court sustained the objection. To say now they would have gone further if the court had not sustained the objection to this question, and propounded other questions that would have elicited testimony explanatory of the condition in which he was found, does not render admissible the answer to an improper question. What he intended to do if he had not been caught, is the statement of no fact, would explain no fact in *Page 146 evidence, and the court did not err in sustaining the objection to the only question propounded, because by it he could not have elicited the information he now says he desired to get in evidence. Questions to elicit such information were not propounded, and the only question we are called to rule upon is, did the court err in sustaining the objection to that question, — not would he have erred had other questions been propounded, which were never propounded. No legitimate answer to the question propounded would have been legally admissible. This is the only question upon which my brethren agree that the case should be reversed, and to this I enter my dissent. For authorities, see sec. 857, White's Ann. Proc.
On the other question discussed I agree to the conclusion reached by Presiding Judge Prendergast, that the ordinance is valid. Of course, in so doing I agree with Judge Davidson that the authority to enact this ordinance must be found in the charter, and think Presiding Judge Prendergast so holds, but I do not agree with Judge Davidson that no such authority is found in the charter of the City of Fort Worth. Presiding Judge Prendergast copies enough of the provisions of the charter to show that ample authority is therein contained. If there was no such authority in the charter, then the authorities cited by Judge Davidson would be in point, and I would agree that the ordinance was invalid.
I do not agree that the ordinance is in conflict with any State law. If it was in conflict with a State law, then I would agree that it was invalid. Judge Davidson says it conflicts with the laws defining adultery and fornication. I do not think so. Adultery and fornication are defined to be habitual carnal intercourse, or intercourse while living together. This ordinance defines as an offense one act of intercourse between a white person and a person of the negro race. If under the adultery or fornication statute you should allege that A.B., a white man, or a man, had one act of intercourse with C.A., a negro woman, or a woman, upon proof of that fact a conviction could not be had either under the adultery or fornication statute. In fact, an information charging only those facts and no other would be quashed on motion, therefore the ordinance in nowise conflicts with the State law as to adultery and fornication. It denounces as an offense a single act of intercourse between a white person and a negro person, a matter about which the State had not legislated, except to prohibit the intermarriage of such persons. Article 483 of the Penal Code provides if any white person and negro shall knowingly intermarry with each other in this State, they shall be punished by confinement in the penitentiary; and article 484 provides the term "negro" includes also a person of mixed blood descended from negro ancestry. That such a law is violative of no provision of the Constitution, State or Federal, has been specifically held by this court in the cases of Frasher v. State, 3 Texas Crim. App., 263, and Francois v. State, 9 Texas Crim. App., 144. The opinion of Judge Davidson that such an act is unconstitutional is supported but by one authority, that is Burns v. State, 48 Ala. 195, and that case was overruled *Page 147 by the Alabama Supreme Court in the case of Green v. State,58 Ala. 190. What was the object and purpose of prohibiting intermarriage between the races? It was to prevent there being children born of mixed blood. The City of Fort Worth had taken one step further than the State, it prohibits a single act of intercourse when not married, to carry out the general policy of the State — prevent the birth of children of mixed blood. An ordinance of the city must not conflict with a State law is not denied, and we agree to that rule of law as announced by Judge Davidson, and the authorities quoted by him, but this ordinance is not in conflict with any State law, but is dealing with an evil about which the State has enacted no legislation, under the authority granted the city by its charter, and this court had specifically held, Ayres v. Dallas, 32 Tex.Crim. Rep., that a city may enact an ordinance which defines as an offense an act which is not defined in the Penal Code, where authority to do so is conferred upon the city. This is what the City of Fort Worth has done, and nothing more. The legal propositions asserted by Judge Davidson are correct, except wherein it is held that such an act would be unconstitutional, but they have no application to the facts in this case as shown by the record on file, and the charter of the City of Fort Worth, of which we are required by the act to take judicial notice.
I am of the opinion the judgment should be affirmed, and I respectfully enter this my dissent.