author: CHRISTIAN, J. LATTIMORE, J.

text:
    PHIPPS v. STATE.
    No. 13669.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    Rehearing Denied Feb. 18, 1931.
    W. B. Myres, of Fort Worth, Pierce B.. Ward, of Cleburne, and J. L. Bird', of Walnut Springs, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of mash for the purpose of manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Appellant’s two-story residence was situ•ated on a hill surrounded by his farm and . pasture land. Officers went to appellant’s premises for the purpose of making a search for intoxicating liquor. Touching the result of the search, they testified, in substance, as follows: They discovered on the premises fourteen barrels of mash suitable for making whisky, a gallon of whisky, a still which was warm, and a fire near the still. Two barrels of mash were buried in the ground about 300 yards from appellant’s residence. One could stand at the place where this mash was buried and see the dwelling house. A short distance away the officers found two other barrels of mash, which were-also buried. The remaining barrels were buried at various places. There was a dirt tank of water near the place where the still was discovered. A path led from the place where liquor was manufactured to the tank. Wagon tracks led from appellant’s residence to the places where the mash was buried and back to the residence again. Following the tracks the officers found a wagon in appellant’s lot. According to their testimony, it was the wagon that made the tracks they had followed. There was a tub of mash near appellant’s back gate. Appellant’s cattle were ranging on the land where the mash was discovered. The officers did not see appellant at the time the search was made. Appellant told one of the officers that the premises belonged to him. After being released on bond, appellant went to one of the officers and asked him if there was any way he could help him (appellant) out. The officer replied that he could not ‘help him. Appellant said: “Well I guess I am blowed up.”

Appellant did not testify in his own behalf, but placed witnesses on the stand who said that the premises on which some of the mash had been found had been leased by them from appellant.

Appellant contends that the evidence is insufficient fo support a conviction. It is observed that the court gave a correct charge covering the law of circumstantial evidence. The rule touching the sufficiency of circumstantial evidence is stated by Mr. Branch in his Annotated Penal Code, § 1877, as follows:

“To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.”

See also Rhodes v. State (Tex. Cr. App.) 28 S.W.(2d) 648.

The opinion is expressed that the circumstances herein related adequately meet the measure of the law.

Appellant sought to have the jury instructed as follows:

“Yon are instructed that the fact that mash was found on or near the premises of defendant is not alone sufficient to authorize his conviction.”

The court instructed the jury that the term “possess”' meant that appellant must have the actual personal care, control,. and management of the mash. Appellant’s in-struetion sought to have the court single out and charge on one oí several circumstances relied upon by the state. Again, appellant had offered testimony, which, if believed, tended to show that the still and mash were not on premises controlled by him. Hence the requested charge was on the weight of the evidence.

Appellant also sought to have the jury instructed as follows:

“In no event can you convict the defendant, unless the state has proven beyond a reasonable doubt that the defendant had the actual personal care, control and management of the mash in question, and unless the state has proven that the defendant had the actual personal care, control and management of such mash you will find him not guilty, or if you have a reasonable doubt thereof you will find him not guilty.”

Paragraph 2 of the court’s charge defines the term “possess” as follows:

“By the term ‘possess’ as used in this ■charge is meant that defendant must have the actual personal care, control and management of the mash in question.”

Immediately following the foregoing instruction is paragraph 3, which reads as follows:

“Now if you believe from the evidence beyond a reasonable doubt that the defendant Alex Phipps in Bosque County, Texas,' on or about the first day of February, A. D. 1930, did unlawfully possess imash as the term ‘possess’ is above defined, for the purpose of unlawfully manufacturing whisky, then you will find the defendant guilty as charged in the indictment and assess his punishment at confinement in the state penitentiary for any term of years not less than one nor more than five, but if you have a reasonable doubt thereof, then you will acquit the defendant.”

It is observed that the foregoing charge expressly directs the attention of the jury to the definition of the term “possess.” The latter part of said charge advises the jury, in effect, that if they should have a reasonable doubt that appellant possessed the mash, as that term had been defined, he should be acquitted. If it was proper for the court to instruct the jury as requested by appellant, we are of the opinion that the court’s main charge adequately presented the proposition embraced in the requested instruction.

The judgment is affirmed.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Insufficiency of testimony, and refusal to so instruct the jury, are the only grounds upon which rehearing is asked. ‘Mash was found at two points in appellant’s pasture*, near each of which wagon tracks — said in testimony to have been made by the same wagon — were found. From the mash found nearest appellant’s residence, being two or three hundred yards distant therefrom, said wagon tracks were followed and led without break to appellant’s wagon then standing at his house. We think these facts, coupled with others found in the record, entirely sufficient to support the judgment.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: MORROW, P. J.

license: Public Domain

text:
    GRABEL v. STATE.
    No. 14111.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Truman Warren, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

. The offense is murder; penalty assessed at confinement in the penitentiary for a period of ten years.

The record is before us without a statement of facts and bills of exception.

A number of special charges were requested and refused, but without knowledge of the evidence that was before the trial court, we are unable to determine whether the special charges were properly refused or not. In the absence of information on the subject, the presumption prevails that in refusing the charges, the action of the trial court was proper. However, we note that some of the special charges were given, and .those which were refused bear no indorsement showing that their refusal was over the objection of the accused.

In writing the judgment the court ignored the Indeterminate Sentence Law (Vern'on’s Ann. C. C. P. art. 775), whereby the sentence should have directed the confinement of the appellant in the State Penitentiary for a term of not less than two nor more than ten years. The judgment in that respect is reformed, and as reformed it is affirmed.


author: CHRISTIAN, J.

text:
    VERNER v. STATE.
    No. 13906.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    W. H. Tolbert, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Att-y., of Austin, for the State.
   CHRISTIAN, J.

The offense is knowingly possessing a forged instrument with intent to pass same as true; the punishment, confinement in the penitentiary for three years.

The count in the indictment under which appellant was convicted follows the form laid down in Willson’s Texas Criminal Forms (4th Ed.) at page 219. It was not averred that appellant knowingly possessed the instrument, it being alleged, in substance, that appellant did unlawfully and fraudulently have in his possession said instrument, with intent to use and pass, the same as true. After alleging that the instrument was false and forged and setting it out by its tenor, the indictment concludes with the allegation that appellant then and there knew said instrument to be false and forged. Appellant does not question the sufficiency of the indictment, but the state’s attorney before this court calls attention to the fact that article 998, Penal Code, provides that, if any person “shall knowingly have in his possession any instrument of writing, the making of which is by law an offense, with intent to use or pass the same as true, he shall be confined,” etc. ■ The averments are direct to the point that appellant, knew the instrument to be forged and false. It being alleged that he unlawfully and fraudulently possessed the instrument with intent to pass it as true, we think the indictment sufficiently -charges •that he knowingly possessed it. See Jennings v. State, 88 Tex. Cr. R. 639, 229 S. W. 525.

The cheek alleged to be forged and possessed by appellant with intent to pass same as true purported to be a cashier’s check issued by the Stockyards Exchange State Bank of Fort Worth in the sum of $509, payable to Fred W. Dunn, and executed by H. H. Hutchins, assistant cashier of the bank. Red Wells, an accomplice witness, testified that appellant had him go to a photographer and borrow a check protector, which he delivered to appellant; that thereafter appellant pame to his house with some checks which had already been filled out; that he went with appellant in appellant’s car to Austin, where, at the instance of appellant, he bought a shotgun with one of the checks and received some money in change, which he gave to appellant ; that upon returning to Fort Worth, appellant hid the check protector under a culvert near Fort Worth, and that he (Wells) rolled the c-hecks up in a curtain and hid them in appellant’s car. Wells, having been arrested, told an officer where the check protector and checks might be found. The officer recovered the check- protector under the culvert, and, upon searching the appellant’s automobile, found several checks in the car, one of them being the check upon which the prosecution was based. It appears from the state’s testimony that the check protector and checks were in a suitcase belonging to Wells’ wife and in the possession of Wells at the time the parties started on their trip to Austin. This witness testified that appellant came to the house and asked for the checks and check protector, sa-ying they belonged to him. The state also proved by the photographer from whom Wells had borrowed the check protector that it belonged to him, and that he had loaned it to Wells. Wells testified that appellant told him he wanted him to help him cash the checks. Appellant admitted in his testimony that he made the trip to Austin with Wells, but denied that he had in possession any of the checks introduced in evidence. He said that he did not know they were in his car; that he did not make the instruments and knew nothing about them whatever. He offered witnesses who testified that Wells and one Ruiz, who seems to have had some connection with the forged instruments, had stated in their presence that they were going to place the checks in appellant’s car, and implicate-him in the transaction.

Appellant timely and properly objected to the failure of the court to submit an instruction covering the law of circumstantial evidence. The opinion is expressed that the learned trial judge fell into error in declining to respond to the exception. The mere possession of an instrument amounts to nothing unless the other essential elements be established, to wit, the forgery and knowledge on the part of the possessor. These are the main or essential facts to be proved. Where they are established alone by circumstantial evidence, a charge on that subject, when timely requested, should be given. Nichols v. State, 39 Tex. Cr. R. 80, 44 S. W. 1091; Johnson v. State, 82 Tex. Cr. R. 585, 200 S. W. 522. No one saw appellant execute the check. It was not payable to appellant. The fact that he executed said instrument and that it was a forgery rested upon inferences to be drawn from the circumstances surrounding appellant’s possession of the check protector, his possession of the checks, the fact that there was no bank in Fort Worth of the name shown on the check, and appellant’s conduct in hiding the checks and protector after the uttering of one of the checks in the city of Austin. These circumstances were related by the accomplice and other witnesses. None of such circumstances furnished direct evidence that appellant forged the check or that he had knowledge of the forgery.

It appears from bill of exception No. 4 that appellant had on an occasion several months prior to the prosecution of this case gone to Houston in a car with a Mr. Lange; that thereafter the ear was searched and several checks were found in it. Appellant objected to the testimony on the ground that it shed no light on any issue; that it was not shown that said cheeks had ever been in the possession of appellant or that he had guilty knowledge that they were forgeries. We are unable to determine from the bill of exception whether appellant’s objection was well taken. It is the general fule that an accused is to be tried-upon the-merits of the charge against him and that proof of other crimes is not to be received. Gilbraith v. State, 41 Tex. 567; Fry v. State, 83 Tex. Cr. R. 500, 203 S. W. 1096. There-are'exfe'eptions to the rule. That there are cases of passing a forged instrument where there is an issue of guilty knowledge -of intent coming within one of the exceptions has often been’held by this court. Fry v. State, supra. There being an issue of guilty knowledge in the possession of the instrument in question, evidence that appellant passed other forged cheeks similar in character at a time not too remote was admissible. However, to make them admissible, it was incumbent upon the state to prove that they were forgeries, and, further, 'that appellant was connected with them. As stated before, we are unable to tell from the bill of exception whether such proof was made. If it was not, the instruments should not have been admitted.

The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by ’the Judges of the Court of Criminal Appeals' and approved by the court.


author: . MARTIN, J. MARTIN, J. HAWKINS, X

text:
    HIRSCHBERG v. STATE.
    No. 13166.
    Court of Criminal Appeals of Texas.
    March 12, 1930.
    State’s Rehearing Granted Oct. 15, 1930.
    On State’s Rehearing Oct. 15, 1930.
    Appellant’s Rehearing Denied Feb. 18, 1931.
    C. E. Smith, of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., of Houston, and A. A. Dawson, State’s Atty., of Canton, for the State.
   . MARTIN, J.

Offense, robbery by assault; penalty, thirty-five years in the penitentiary.

The pay roll of the Hewitt Construction Company, amounting to about $7,000, was forcibly taken from one of its employees as he approached the Lamar Hotel building, where construction work by his company was going on. The employee was knocked down by a blow on the back of the neck and the money taken from him. The identity of the accused as the perpetrator of this crime was a closely contested issue on the trial. Appellant’s defense was an alibi. Among those who positively, identified appellant as having committed the robbery was one La Bleu, who at the time was working for the Hewitt Construction Company and whose testimony will be discussed below.

Several ponderous bills of exception appear in the record. Some of these contain a greater portion of the evidence produced at the trial and much irrelevant matter which tends to obscure rather than clarify the point attempted to be presented. One of them presents as error the action of the trial court in refusing to permit the appellant to impeach the state’s witness La Bleu, whose testimony was reproduced at the trial, he having died since testifying at a former trial of this ease. The state objected to the impeaching testimony because it was hearsay and no proper predicate had been proven for its admission. La Bleu gave cogent testimony as to appellant’s identity. He claimed to have been within a few feet of where the robbery took place. A predicate was laid for his impeachment at a former trial, which was reproduced by appellant as part of tbe same testimony given by bim and offered by tbe state. He answered then that be did not know John Bowers, did not talk to bim witbin two or •three minutes after tbe robbery, and did not tell bim that tbe man wbo committed it was a tall man in a blue suit of clothes with a dark bat on. Appellant offered Bowers, a newspaper man, as a witness, wbo would bave testified, if be bad been permitted to do so, that La Bleu bad in fact told bim tbe facts denied by bim as above set out and that sucb conversation occurred at tbe scene of tbe crime a few minutes after it happened. Appellant was shown to be a very small man (about five feet tall), and tbe state’s testimony tended to show be wore a white hat and blue suit at the scene of tbe crime. Other bills appear to present a kindred question and one of them apparently attempts to present also tbe point of tbe court’s refusal to permit impeachment of La Bleu by proof of his bad reputation for truth and veracity. In view of the disposition we make of this case, we will discuss generally what we understand to be tbe rule governing a matter of this kind, leaving tbe trial court to make sucb application of it as tbe facts warrant on another trial.

Bill No. 4, first mentioned above, is regarded under tbe facts of this case as showing proof of proper predicate for the impeachment of tbe witness La Bleu. In view of tbe issue of appellant’s identity, there would seem to be no doubt that tbe offered testimony of Bowers tended to weaken tbe effect of La Bleu’s testimony. We think tbe existence of the rule will be conceded which permits impeachment of a deceased witness by proof of statements inconsistent with those of bis produced by tbe state where a proper predicate has been laid for their admission. It has been many times held that a deceased witness may be so impeached without such predicate where there was no opportunity for proof of same, as in dying declarations. Lyles v. State, 64 Tex. Cr. R. 621, 142 S. W. 592; Branch’s P. C., § 1S6S. Or where tbe witness made tbe alleged inconsistent statements subsequent to testimony given on examining trial and reproduced by tbe state. Hamblin v. State, 34 Tex. Cr. R. 368, 30 S. W. 1075. See especially notes to Liddell v. State of Oklahoma, 16 A. L. R-. 405, where tbe subject is discussed and authorities collated. Judge Davidson discussing this said:

“Tbe state having introduced the evidence of the deceased witness, it was not necessary for appellant to lay the usual predicate for the introduction of impeaching testimony. It was impossible to do so. ⅜ * * The life and liberty of tbe citizen is worth more than the supposed fairness or unfairness of the treatment of a witness. To our minds the doctrine is too harsh for toleration that the life of the accused may be taken on such evidence, and yet he be denied the right to impeach the veracity of the witness wbo gives sucb testimony.” Hamblin v. State, 34 Tex. Cr. R. 384, 385, 30 S. W. 1075.

Contrary authority exists based upon the reasoning that no predicate was ever laid and in justice to the witness this should be done. The rule in Texas, as well as tbe great weight of authority elsewhere, however, is as stated by Judge Davidson above. Those, authorities favoring the rule which permits tbe introduction of impeaching testimony without tbe usual proof of predicate proceed upon the reasoning that since no opportunity was ever afforded for laying a predicate, the law will not require the impossible. See notes to Liddell v. State, 16 A. L. R. 405. In the absence of facts which support this reasoning, tbe rule in our opinion ceases to exist. This would seem logically to follow as the converse of the reasoning given in support of the rule, which admits impeachment without proof of a predicate. Therefore we think where a witness’ testimony has been reproduced and the party injuriously affected thereby desires to impeach such witness by showing that he had made contradictory statements, of which the party had knowledge when the witness testified, and then neglected to lay the proper predicate for impeachment, he will be precluded from using the impeaching evidence. However, if the contradictory statements were made by the dead or absent witness subsequent to the time he gave his evidence, which is reproduced, or, although the contradictory statements may have been made prior to the giving of such evidence, if knowledge of such contradictory statements did not come to the party until after the witness testified, such impeaching evidence may be received without a predicate having been laid. This exact question was not discussed by the court in the case of Mitchell v. State, 87 Tex. Cr. R. 530, 222 S. W. 983, 984, and the broad rule there stated is to be interpreted in the light of what is here said.

We are further of the opinion that proof that witness La Bleu bore a bad reputation for truth and veracity would be admissible. We see no reason for a different rule in this matter from that which would obtain if the witness were living. Carter v. State, 191 Ala. 3, 67 So. 981; Lester v. State, 37 Fla. 382, 20 So. 232; 1 Criminal Procedure (2d Ed.) par. 1209, by Mr. Bishop. It follows that we think the court erred in rejecting the testimony of witness Bowers. , The above, discussion is deemed a sufficient guidance fpr the trial court in governing the admissibility of other testimony which may be offered on another trial.

Other questions presented are deemed to be without merit, but for the error above dis-. cussed, the judgment is reversed and cause remanded.

PER CURIAM.

The foregoing opinion of tlie Commission of Appeals has been examined by tbe judges of tlie Court of Criminal Appeals and approved by the court. -

On State’s Motion for Rehearing.

MARTIN, J.

The state has filed a motion for rehearing, not questioning any rule of law announced in our original opinion herein, but vigorously contending that bill of exception No. 4, upon which we based our reversal, was insufficient to present the question discussed and decided. The bill as heretofore intimated has been obscured by vague and irrelevant statements and the ponderous recital of verbatim extracts from the statement of facts which appear entirely immaterial.

The state contends that the bill is sufficient to show that the jury retired and in its absence appellant had read to the court a part of the former testimony of the deceased witness La Bleu as a predicate for his impeachment; that this was followed by placing the witness Bowers on the stand and having him testify to certain statements in contradiction of the statements of La Bleu, all of which happened before the. court in the jury’s absence; that the state objected to the testimony of Bowers. because the same was hearsay and “no testimony was before the jury to form a basis to impeach La Bleu”; that the court sustained these objections, to which the defendant excepted. A careful reconsideration of the bill convinces us that its proper construction is as contended by the state, that is, that the appellant was put upon notice that the state’s objection was that he had not proven before the jury a proper predicate. The bill further certifies that no such predicate was offered before the jury. Obviously the witness could not be impeached without laying the proper predicate before the jury, and this not having been done, or attempted, no error is shown therein. Perea v. State, 88 Tex. Cr. R. 382, 227 S. W. 305.

The refusal of a subsequent application for a continuance is made the subject of bill of exception No. 1. The absent testimony related to proof of statements allegedly in contradiction to the testimony of state’s witness La Bleu, who is mentioned above. A motion to continue for impeaching testimony will ordinarily be refused. Branch’s P. C. § 324; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; McCuen v. State, 75 Tex. Cr. R. 108, 170 S. W. 738. In addition, this bill is fatally defective in failing to show either the materiality of this testimony or such facts as would make it admissible under the rules already laid down for the impeachment of a deceased witness. If appellant with full knowledge of this testimony failed to lay a predicate for its introduction when La Bleu was1 on the witness stand at a former trial, he could not thereafter use his alleged impeach--ing testimony. Authorities cited in original opinion. The existence of such facts as would render this testimony admissible should have been alleged in appellant’s motion for continuance.

Finding no error in the record properly presented for review, the state’s motion for rehearing is granted, and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved, by the court.

On Appellant’s Motion for Rehearing.

HAWKINS, X

We do not care to again review bill of exception No. 4. It had our most careful attention upon consideration of the state’s motion for rehearing. In appellant’s motion for rehearing he asks that we again give consideration to bills of exception Nos. 2 and 3. In appellant’s reply to'the state’s motion for rehearing, which reply was filed on March 29, 1930, there is an admission that bill of exception No. 2 shows an attempt to impeach La Bleu without any predicate being laid. This, we take it, eliminates said bill.

Bill of exception No. 3 first contains the indictment against appellant. We fail to see the necessity for this. The next two pages contain the state’s reproduced testimony of La Bleu, who had died since testifying on the former 'trial. After his evidence was read, appellant’s attorney said: “In connection with the testimony of Mr. J. B. La Bleu just read I want to state that I have some impeaching witnesses who are not here. When it comes our turn we want to offer some testimony to impeach him.” To which the court remarked: “We will pass on that when we get to it.” There is then set out in the bill sixteen pages of testimony, some of which' was offered by the state and some by appellant. We have been unable to see the necessity of thus cumbering the bill. Finally the bill does recite that appellant placed on the stand the witness Mouser; that the jury was withdrawn at the request of the state, and, in the absence of the jury, Mouser testified about a conversation claimed to have occurred-between him and La Bleu, and between La Bleu and another party, and also testified, that La Bleu’s general reputation for truth and veracity was bad. The conversations: that Mouser testified about occurred subse--quently to the other trials of the ease. The-testimony just mentioned given by Mouser was objected to by the state on the ground; that they could not see how it could impeach the dead man, which was La Bleu. If the court ever made any ruling upon the objection interposed by the state, the bill fails to show it. It does recite that appellant excepted to the ruling of the court, and the bill concludes with a certificate of the judge that all the testimony of Mouser was given in the absence of the jury. It is nowhere stated in the bill that evidence was ever offered in the presence of the jury, either to the effect that La Bleu’s general reputation for truth and veracity was bad, or that Houser’s testimony which would have tended to impeach La Bleu upon the question of the identity of appellant was ever offered in the presence of the jury. The bill fails to show that the court ever ruled upon the state’s objection at all, or intimated in any way that he would not permit the evidence to go before the jury. In this state of the record no error is disclosed by this bill of exception.

Appellant’s motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    LANDRY v. STATE.
    No. 13387.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1930.
    Rehearing Denied Deb. 25, 1931.
    Vickers & Campbell, of Lubbock, and Williams & Bell, of Childress, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the state.
   LATTIMORE, J.

Conviction for murder; punishment, five years in the pentitentiary.

The penalty in this case takes out of it the necessity for considering the attack made on the indictment in appellant’s brief..

In his brief appellant raises first the question of the sufficiency of the testimony. The general rule adhered to by this court in deciding this question is that, if there be evidence in the record which, if believed by the jury, would reasonably support the conclusion of guilt, the judgment will be upheld. Brister v. State, 97 Tex. Cr. R. 395, 262 S. W. 82; Cross v. State, 100 Tex. Cr. R. 88, 271 S. W. 621; Clark v. State, 90 Tex. Cr. R. 613, 237 S. W. 260. as said in Addison’s Case, 3 Tex. App. 40: “With the facts this court [appellate court] has but little concern, except to see * * * that there' is a sufficient amount of legal evidence to support the finding of the jury.”

This killing took place at night near the town of Flomot. Deceased, appointed constable of his precinct two weeks before he was killed, was on his way home alone in a Ford touring car, and was shot near a bridge over a ravine. Some witnesses said they heard four shots. One witness testified that she heard five. Those persons first getting to the scene found the car of deceased sitting “quartering” across the road. The lights of the car were still on, and deceased was described as sitting under the wheel of the car with one foot on the clutch and the other on the brake, his body kind of slumped, his hat lying just behind the car. His pistol was sticking back between his legs, the barrel protruding and warm. There were four empty shells and one loaded one in said pistol. Three bullets seemed to. have been fired from inside the car, one going through the left front door, one through the right-hand corner of the windshield, and one through the cushion on the right-hand side of the back seat., Deceased was shot through the head, the bullet entering about the lower part of the right ear, ranging up and coming out about an inch or more above the left ear; the right side of the face being badly powder burned. The right side of the hat brim of deceased was also much powder burned, and the knot on the hatband on the left side was shot off as the bullet went through said band. Dr. Trawick, who examined the body of deceased, swore that the shot through the head caused instant death; that one receiving such wound would not be able to do anything after receiving it. This fact is nowhere questioned in the record. Two doctors examined the body, and both said that in their judgment deceased was shot through' the head with a small pistol, probably a .30 or ,32 caliber. The pistol of deceased was a .38 caliber pistol. Witnesses who got to the scene soon after the shooting saw what appeared to be two fresh sets of tracks under the bridge referred to. The ground where the deceased’s car stood was hard.

According to the state’s theory, appellant, W. F. Allen, arid Harmon and Adolph Mosely were' all connected with the killing. They were arrested, and the shoes taken from the feet of appellant and Allen were placed in the tracks found under the bridge, and, according to, the testimony of state witnesses, they fitted said tracks. The shoes .of Alleri were worn or broken across the ball of the shoe, and the tracks of one set showed the same defect across the ball of the shoe. ■ Appellant, Allen, and the two Moselys were at Allen’s drug store that night when deceased werit there1 with Dr. Sherman to get some medicine. - A few'minutes later deceased was in Trice’s store, where Sam Jones came in with a watch he wanted to set. Deceased set it for him with the watch of Mr. Cooper at 7:30. Jones swore that a few minutes later he went to Allen’s drug store and found it closed, which was earlier than it was usually closed. Clements, justice of the peace, also a "barber, testified that at something like 8 o’clock deceased left his place to go home, got in his ear, and backed out and left. In a few moments the Gunn boys also left, and inside of ten minutes they were back with news of the homicide. Witnesses who examined the road running west from said bridge testified that just west of the bridge mentioned they found car tracks which left the highway and turned north about a half mile from said bridge. At this turn they observed that the right-hand rear tire of the car was worn smooth, but that the other tires had good treads. Following this road north to another turn, they observed the same tracks, and also at a point east where the road turned again they observed the same tracks, and again at another turn where the road intersected the Flomot-Quitaque road. They found the same impressions at other points where the ground was sort. These witnesses came back to Flomot, to the Allen Hotel, run by appellant’s codefendant Allen, and at which hotel appellant was making his home, and found in front of same a Dodge coupé which had a smooth worn casing on its right rear wheel, and casings with good treads on the other three wheels. They ran the car back and forth and testified to the similarity of the tracks made at that time to those seen by them on the road examined. This Dodge coupé belonged to Harmon Mosely, one of appellant’s codefendants, who was a son-in-law of Allen. Appellant took the stand in his own behalf, and testified that on the night in question, after Allen closed his drug store, he, Allen, and the two Mose-lys got in said coupé and went out the Quitaque road north from Flomot, and then turned east to the home of one Barnes where they ate crackers and cheese and drank beer for an hour or more, and then came back to Flomot. In other words, appellant connected his movements on that fatal night with those of Allen and the Moselys, swearing in effect that, where Allen went after closing his store, appellant went and, where Harmon Mosely’s Dodge coupé went after the closing of said drug store, he (appellant) also went. The place on the Quitaque road where appellant claimed they turned east to go to the house of Barnes .is shown on the map introduced in evidence to be south .of the place where the witnesses who claimed to have tracked the car mentioned said .it came back to the Flomot and Quitaque road.

In addition to the above, the testimony showed that the deceased had arrested Harmon Mosely a week before this killing, and' refused to také the kind oí bond Allen offered for Mosely; tliat Allen got angry, and called deceased the names set out below. A witness swore that Alien presently came out from where deceased and Mosely were, and, as he came out, Allen said he would kill the G-d d — —d s — ■—■ of a b-. Another witness swore that he hear Allen say he would show the s-n of a b- that he was not as smart as he thought he was. Still another witness swore that he heard Allen say he would kill the s-n of a b-h, as Allen came out of the place where deceased and Mosely were. Judge Clements, justice of the peace, swore he heard deceased, tell Allen he was going to file a complaint against him also, and that Allen called deceased a low-down dirty dog. This same witness heard Mosely tell deceased that, if he thought anything of himself, he would be better off at home than in town meddling with other people’s business. He also swore that on the night of the killing, and shortly before same déeeased had filed a complaint against Allen, Harmon Mosely, and the sheriff, Claude Warren, who was a witness for the defendant on this trial. Mr. Baker swore that on Saturday before the appointment on Monday of deceased as constable witness drove up to a filling station where this appellant was, something was said about Monday being the day deceased would be appointed, and appellant said “If he does, the s-n of a b-h will be bumped off.” A witness also testified that on December 2d, after the killing on the night of November 2Sth, he went to the home of Harmon Mosely and got from Mosely’s wife a .32 caliber pistol which showed to have been recently discharged. Dr. Sherman testified that he left Flomot that night at 7:15 and drove to Quita-que in thirty minutes, heard of the shooting fifteen minutes later, and at once drove back to Flomot, which he would supposedly reach in another thirty-minute period. Judge Cle-ments testified that, while watching for Dr. Sherman to come from Quitaque, he saw a car coming down the Quitaque road which began to honk the horn some one hundred or one hundred and twenty yards north of the drug store, and kept up an almost continuous blast of the horn up to the drug store. Thinking perhaps it was the doctor intending to signal the druggist to meet him at the drug store, witness1 crossed over and met the car in front of Allen’s drug store, and found its occupants to be appellant, Allen, and the two Moselys. No apparent reason was given upon the trial for their thus advertising the fact that they were coming into Flomot on a different road from that which led out to where deceased was killed. Dr. Trawiek said that he examined the body of deceased closely, and found only one other place on same, beside the head wound, that the right wrist of deceased was bruised as though some one had held deceased by said wrist It was shown that parties leaving Allen’s drug store going north could have driven around in the town of Flomot and gotten back on the Floydada road to the point where the killing occurred.

These facts are set out at some length, because the lack- of evidence seems appellant’s main defensive theory. We have not discussed the testimony introduced for appellant which his eminent counsel .ably insist in their brief overthrows the state’s case. The decision on facts in cases of conflict is for the jury. We have set out as accurately as we can the testimony which to us seems to support the jury’s decision on the following points: First, that the killing was not a suicide; second, that there were threats by Allen and appellant toward deceased; third, that there was a motive on the part of Allen and the others for the killing; fourth, that the facts strongly supported the conclusion of the presence of Allen and appellant at the time and place of the homicide,also that some one used a .32 caliber pistol ; fifth, that facts supported the theory that a car with casings exactly like those on Mosely’s car went the Floydada road from where the killing occurred west to Gunn’s corner, north to Moore’s corner, east to Webb’s corner, thence down the road to where said car turned into the Quitaque road, and from.that road same could have gone to the house of Barnes; sixth, the testimony that the wound in the head of deceased was made by a bullet from a pistol smaller than that of deceased, and similar in size to one found freshly discharged in Harmon Mosely’s house a few days after the killing; seventh, testimony showing that the instant paralysis following the shot in the head would overthrow any idea that the pistol of deceased was stuck by him between his legs, barrel out, after the shot through the head was fired; eighth, the facts showing a bruise on the wrist of deceased, made as though by some one holding same, which would be natural if deceased tried to use his pistol against one or more persons at or around his car just before he was killed; ninth, the other fact supplied by the testimony of appellant, viz. that he was with both Allen and the Moselys where-ever they were at the time of this killing.

After carefully considering and weighing these facts, we are constrained to believe them sufficient, if believed by the jury to be true, to form the basis of a verdict of guilty. We see no necessity for setting out or discussing, the lengthy testimony for the defense, the effect of which, if accepted by the jury, would have been to overthrow the state’s ease. The jury are by statute made the exclusive judges of the credibility of- the witnesses, as well as the weight of their testimony.

By two bills of exception complaint is made of tbe admission of testimony detailing the kind and character of certain automobile tracks which two or three hours after the homicide were seen and followed from near the bridge mentioned in various windings; also the kind and character of tracks made by a Dodge coupé which were examined by said parties the same night, the witnesses expressing belief in the similarity of the tracks. We observe that Mr. Russell, the -witness whose testimony is objected to, said he had had experience in tracking both men and vehicles, and “We could tell about the car tracks, and which way they turned.” It is not necessary for such witness to measure such tracks as a predicate for the receipt of his opinion that they were similar. We note, however, that, while this witness said ■that at certain places they saw the tracks they were following, when he gave testimony 'as to the likeness of these tracks to the tracks of Mosely’s ear, he went no further than to •say that in his opinion they were similar. This differentiates the instant case from that of Hester v. State (Tex. Cr. App.) 51 S. W. 932, and Burkhalter v. State, 85 Tex. Cr. R. 282, 212 S. W. 163. The rule contended for by appellant would deny a witness following tracks the right to say they were followed, unless the witness had measured each succeeding track in the line of tracks so being followed.

Appellant used Calvin Barnes as a witness to testify that appellant, Allen, and the Mosely boy came out to his house five miles northeast of Elomot at about 8 o’clock on the night of the homicide, and stayed about an hour. If there could be any objection to the state eliciting from this witness what the party did in the way of eating and drinking during their stay at his house, which we do not believe to be a sound objection, the error was cured by the fact that appellant took the stand as a witness in his own behalf and swore on his direct examination what the party did in the way of eating and drinking while at Barnes’ house, an'd that they did the things about which Barnes had testified, and which were objected to. McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54.

Complaint is made of the testimony of two doctors who examined the body of deceased, and each of whom swore that from their examination they concluded that deceased was shot through the head with a small bullet, either a .30 or .32 caliber. Dr. Sherman testified as follows; “I judge it to ¡have been made with a 32, or possible smaller bullet. The pistol you hand me now is a 38 caliber. In my judgment that is not the size bullet that made the wound in Stegall’s head. The shell you hand me now, is a 32, and looked like the bullet that made the wound.”

Objection was made to the testimony of the doctors upon the ground that same was a conclusion, and they were not shown to be sufficiently qualified to give their opinions. • Dr. Sherman also testified as follows: “To some extent I am familiar with the various sizes and calibres of pistols. In my practice I have had some experience in observing and treating gun shot wounds, but not a great deal of experience along that line. Erom my experience and observation of various calibre of guns and pistols, I think I can tell about what size calibre bullet that made the wound I saw there on Stegall’s head.”

Dr. Trawiek said: “I have had quite a little experience in examining wounds of that character, and am familiar with the various sizes and calibres of guns and pistols. From the examination I made of the wound found on the deceased, in my judgment it was made with a 30 or 32 calibre bullet.”

Under all the authorities, the competence of an expert is a question primarily addressed to the discretion of the trial judge. Under-hill’s Or. Ev. § 189; English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632. Branch’s Annotated P. C. § 131, cites many cases on the question of when one is held competent as an expert.' We think the objections to the testimony of neither witness were tenable. Regarding the particular objection addressed in the brief of appellant to that part of Dr. Sherman’s testimony in effect that the shell shown him was a .32 caliber, and looked like the bullet that made the wound, this must be, and doubtless was, viewed in the connection same appears in the quotation above, understood to be but the expression of the doctor’s opinion that the shell shown him looked like the size of the bullet that made the wound. We see no material difference.

The witnesses testified that they took shoes from the feet of appellant and Allen after their arrest on the night of the (homicide, and that said shoes were “fitted” into two sets of tracks found under the bridge near where the body of deceased was found after he was shot. Such testimony was admissible. Walker v. State, 7 Tex. App. 264, 32 Am. Rep. 595; Guerrero v. State, 46 Tex. Cr. R. 447, 80 S. W. 1001; Pitts v. State, 60 Tex. Cr. R. 527, 132 S. W. 801. The parties testified to the presence of two sets of tracks under said bridge, one of which showed shoes broken across the ball, the other set made by a No. 8 shoe. Allen’s shoes showed to be broken across the ball, and appellant’s shoes were No. 8. The strongest fact regarding identity and fixing admissibility of this testimony was that said shoes “fitted” into the track found under said bridge. It was testified that Alienas shoe fit the track which had a broken place across the ball, and that Paul Landry’s shoes fit the other set of tracks.

The state’s theory based on its testimony, being that appellant, Allen, and the.Moselys conspired to kill the deceased, and were together when he was killed, anything said or done by either of said parties prior to the homicide tending to show animus, anger, or ill will toward deceased was admissible, and, upon the same principle, could be justified the admission of previous threats, difficulties, or quarrels, if any, by one or more of said parties with or toward deceased; • and, if the testimony fairly tend to show that the parties were acting together at the time of the homicide, it would be immaterial whether the prior threats, difficulties, or quarrels were by all of them together, or any one or more of them apart from the others. A coactor in the consummated crime adopts and makes himself a party to what has theretofore been said or done by his fellow conspirators in furtherance of the common design. Smith v. State, 21 Tex. App. 102, 17 S. W. 560; Rix v. State, S3 Tex. Cr. R. 353, 26 S. W. 505; Holt v. State, 39 Tex. Cr. R. 299, 45 S. W. 1016, 46 S. W. 829, and cases cited in sections 693 and 694, Branch’s Annotated P. C. We regard it sound to say that, appellant haying unqualifiedly committed himself by his own testimony to being present with Allen and Mosely somewhere at the time of the killing, the jury might take this statement of his as true, and within their discretion reject all else he said, and might add to that each fact and circumstance pointing to the guilt of Allen and Mosely in determining appellant’s guilt. Hays v. State, 90 Tex. Cr. R. 195, 236 S. W. 463.

Each of the. other matters complained of by appellant in this record has been examined and considered, but, in our opinion, are not deemed of such character as to call for discussion.

The judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

HAWKINS, J.

On account of illness, the present writer was not present when appellant’s motion for rehearing was argued. This has caused a very careful examination of the motion and also of appellant’s original brief where it has been referred to in said motion.

In passing upon the renewed insistence that-the evidence does not sustain the conviction, we must look to the state’s testimony which must have been accepted by the jury as true. The analysis of the evidence in our original opinion is exhaustive, and it.would profit nothing to restate it, nor our conclusions therefrom.

We have examined all the other matters urged in the motion for rehearing, and see no reason to change our view that proper disposition was made of the case originally.

The motion for rehehring is overruled.


author: CHRISTIAN, J. DATTIMORE, J.

text:
    CROWLEY v. STATE.
    No. 13698.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1930.
    Rehearing Denied Feb. 18, 1931.

      B. Jay Jackson, of Cleburne, for appellant.
    Penn. J. Jackson, Co. Atty., of Cleburne, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for twenty-five years.

Appellant and deceased, Dick Anderson, resided upon neighboring farms. Deceased and appellant’s father-in-law, with whom appellant resided, were unfriendly. There was evidence on the part of appellant that deceased had made hostile declarations and threats to do appellant violence. On the occasion of the homicide deceased and his small boy had gone into deceased’s field after a cow. Deceased was unarmed. Appellant, his wife, mother-in-law, and others were in their house nearby. According to the version of the state, upon seeing deceased, appellant came out on his porch and hollered: “Yonder is old Dick, the little short d-s-of a b-.” Deceased entered a lane which was near appellant’s house. One of the children of deceased testified that appellant was “just calling papa (Dick Anderson) everything he could lay his tongue to.” Procuring a 'gun, appellant ran toward deceased. At this point we quote the testimony of a witness for the state:

“As Elzie was running down there with the gun he was cussing papa and trying to make him run. My father told Elzie that he did not come there running. Elzie said: ‘You s-of a b- run.’ Papa said he didn’t come-there running and he wasn’t going -to leave running.”

It was further in evidence that just before appellant shot deceased he said: “You blare up that road you cowardly s-of a b-.” At the time the fatal shot was fired deceased was behind his daughter, who had come to the scene of the difficulty. She was severely wounded. Deceased was instantly killed.

Appellant and his witnesses testified that deceased applied vile epithets to appellant’s wife and mother-in-law. Appellant said that he approached deceased with the shotgun for the purpose of whipping him; that when he got within about twenty feet of deceased, deceased made a movement to a hip pocket with one of his hands; -that deceased said, “You are going to have to shoot, you G-d-d s- of a b-”; that believing deceased was going to shoot him, he fired the fatal shot. He further said: “I went down there to have trouble with Dick Anderson. I went down there to whip him (to beat the devil out of him).”

According to the testimony of the state, after deceased had fallen .to the ground, appellant attempted to jump on him with his feet. The wife and children of deceased interfered and appellant struck one of the girls with his fist. Appellant denied that he was guilty of the conduct ascribed to hini by the witnesses.

It appears' from bill of exception No. 18, as qualified by the court, that in answer to the contention made by appellant that his general reputation for being peaceable and law-abiding was good, the state had offered witnesses who entertained the opinion that his reputation in the respect mentioned was bad. In cross-examining one of these witnesses, appellant’s counsel went into detail about the bad things appellant had done. In response to questions by appellant’s counsel, the witness testified to having seen appellant near a whisky still with some other parties.' The witness hesitated when asked to give the details of the transaction, and advised appellant’s counsel that he could not answer his question without telling the whole thing. He then said: “Do you want me to answer the question you asked me?” Appellant’s counsel replied: “Yes go ahead.” After the witness had given the details of the transaction, appellant requested the court to withdraw his testimony from the consideration of the jury. The court overruled the objection. As shown by the bill of exception, all of the testimony of which complaint is made was brought out on cross-examination by appellant’s counsel. An accused may not bring out objectionable testimony and then predicate error upon the refusal of the court to strike it from the consideration of the jury. Bruce v. State, 31 Tex. Cr. R. 590, 21 S. W. 681; Weaver v. State, 112 Tex. Cr. R. 546, 17 S.W.(2d) 1066.

Bills of exception Nos. 5 and 6 relate to remarks in argument to the jury by the district attorney. Each of said bills is qualified with the statement by the court that appellant’s counsel made no objection to the argument in open court. This court has committed itself to the proposition that ordinarily objections to argument must be made at the time it occurred in order that the attorney making may, if he sees fit, withdraw or explain it. In Sears v. State, 106 Tex. Cr. R. 219, 291 S. W. 547, 548, this court said: “Unless objection to argument is called to the court’s attention at the time the objectionable statements are made, they cannot ordinarily be taken advantage of by later complaints.” In the present case it appears that the matter was not called to the court’s attention until motion for a new trial was filed. No bills of exception were taken at the time the argument was made. In Blackwell v. State, 107 Tex. Cr. R. 63, 294 S. W. 852, 854, the court said: “This bill further discloses that the court’s attention was not called to the argument, nor any bill of exception taken thereto, at the time it was made, but that the court’s attention was called to same after all the argument was over.” It was held that the bill was not sufficient. Salinas v. State, 113 Tex. Cr. R. 142, 18 S.W.(2d) 663; Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485; Simmons v. State, 93 Tex. Cr. R. 421, 248 S. W. 392; Hicks v. State, 97 Tex. Cr. R. 373, 261 S. W. 579; Ross v. State, 102 Tex. Cr. R. 364, 277 S. W. 667.

The trial judge instructed the jury upon the law of provoking the difficulty as a limitation upon the law of self-defense. Appellant objected to the charge on the theory that the testimony failed to raise the issue. To render appropriate a charge on the law of provoking the difficulty, there must be evidence that “the accused willingly and knowingly used some language or did some act after meeting his adversary reasonably calculated to lead to affray or deadly conflict, and unless such act was reasonably calculated and intended to have such effect, the right of self- . defense would not thereby be forfeited.” 13 Ruling Case Law, p. 833, § 137; Roberson v. State, 83 Tex. Cr. R. 244, 203 S. W. 349, and cases cited therein; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990. Appellant began the conversation with the deceased by the use of language which the jury might have deemed to be reasonably calculated to provoke the deceased and bring on a conflict. In approaching deceased, according to the version of the state, he continued to abuse and curse him, and ordered him to run up the road. We think the evidence justified the learned trial judge in instructing upon the law of provoking the difficulty as a limitation upon appellant’s right of self-defense. Moore v. State, 96 Tex. Cr. R. 493, 258 S. W. 476.

Having placed such limitation upon the right of self-defense, it was incumbent upon the trial court to submit an instruction covering the converse of provoking the difficulty. Branch’s Annotated Penal Code, §⅝ 1958. It is appellant’s contention, as pointed out in his objections to the court’s charge, that the court failed to charge such converse. It is observed that the court instructed the jury, in Substance, that appellant’s plea of self-defense would not be abridged and should be considered without reference to the law on the subject of provoking the difficulty if appellant did no act to provoke a difficulty and used no words calculated to provoke a difficulty. The doctrine of reasonable doubt was applied to this charge. Moreover, the court instructed the jury that if they believed • appellant provoked the difficulty, if a difficulty was provoked by him, without any intention to kill or inflict serious bodily injury upon the deceased, the punishment could not be assessed at more than five years confinement in the penitentiary. Again, the court instructed the jury that if the acts done or the language used by appellant, if any, were not calculated or intefided to provoke a difficulty or an attack by deceased, appellant’s right of self-defense would, not be in anywise abridged or lessened. The opinion is expressed that the converse of provoking the difficulty was adequately submitted.

There are numerous bills of exception in the record. We have not undertaken to discuss all of appellant’s contentions. However, they have been carefully examined, and the opinion is expressed that reversible error is not manifested.

The judgment is affirmed.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, J., absent.

On Motion for Rehearing.

DATTIMORE, J.

When one accused of homicide pleads self-defense, it is not infrequent that his rights in this regard are limited or abridged by an instruction on provoking the difficulty. It seems to somé- extent idle to debate whether there be a “difficulty” when one man gets shot by another. In the instant case the defense offered testimony whose effect, if same was believed by the jury, was that deceased made ugly remarks, insulting statements, threats, etc., immediately preceding the shooting, which so enraged appellant as to cause him to get his shotgun, go toward deceased, who then made a threatening gesture as if to draw a weapon, upon which appellant shot and killed deceased. ' Such testimony was admissible both as showing the condition of the mind of appellant prior to and at the time of the homicide, as rebutting any theory of malice, and as showing that the killing was in self-defense, and also as rebutting the proposition that appellant provoked the difficulty. All of appellant’s rights resulting from the above facts and based on such testimony were protected and guarded in the court’s charge submitting the various phases of the case from the defendant’s standpoint.

In determining whether there be evidence calling for a charge on provoking the difficulty, ordinarily same would not cause the trial court to go beyond the state’s evidence, though in some cases this might not be true; but if there be such evidence, it would be the duty of the court to submit the law of such issue, even though the trial court might believe the evidence on the part of the accused to be sufficient to overcome or rebut the theory of provoking the difficulty. The settlement of whether the issue be sustained or rebutted would be for the jury.

In his motion, and contention elsewhere, that the converse of the charge on provoking the difficulty was not submitted, it seems to us that appellant has overlooked the additional charge given by the court. In same the court said:

“Gentlemen of the Jury: In connection with paragraphs 14, 15, 16, and 17 of the court’s main charge, you are further instructed that if you should find, or have a reasonable doubt thereof, that the defendant Elzie Crowley did no act to provoke a difficulty with deceased Dick Anderson, and spoke no words calculated to provoke a difficulty, or an attack upon the defendant, by the deceased Dick Anderson, then in such an event the defendant’s right of self defense would not in anywise be abridged or lessened, and you will decide in that event the issue of self defense in accordance with the law on that subject contained in paragraphs 10,11,12 and 13 of the court’s main charge and. also the defendant’s special charge relating thereto, and without reference to the law on the subject of provoking the difficulty.”

Paragraphs 14, 15, 16, and 17 of the main charge, referred to in said additional charge above quoted, were those in which the law relative to provoking the difficulty was stated. We note that the only exceptions taken by appellant to the charge were to “the main charge of the court.” If any exceptions were addressed to said additional charge quoted, we fail to find same. Paragraph 17 of the main charge was intended to present the converse of provoking the difficulty, and seems to do so; but if there could have been any question as to its sufficience in this regard, there could be none when said additional charge is taken together with said paragraph 17.

In our original opinion we set out some of the state’s testimony, not for the purpose of stating that such facts were not controverted, nor for the purpose of stating that we believed them to be true, or that they were true, but merely as making it plain that the trial judge was not without ground for submitting said issue of provoking the difficulty to the jury.

The trial court told the jury in paragraph 16 of the charge that even though appellant did provoke the difficulty, if same was without intention to bring about a difficulty in which he might kill or inflict serious bodily injury, or if the jury had a reasonable doubt on, this point, if they convicted they could not inflict a penalty of more than two to five years. We think, this correct.

We have endeavored to give to appellant’s motion careful thought and consideration, but are unable to agree that the case was wrongly decided.

The motion for rehearing will be overruled.


author: LATTIMORiE, J.

text:
    BARNETT v. STATE.
    No. 13941.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    B. W. Baker, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORiE, J.

Conviction for torturing a mule; punishment, a fine of $25.

We are confronted at the outset with appellant’s attack upon the 'information for its .■ failure to use the word “willful” in charging the offense. We have now no offense in this state whose definition is the willful or wanton killing of a domestic animal. Conway v. State, 112 Tex. Cr. R. 290, 16 S.W. (2d) 228. Article 1374 of our Penal Code was enacted in 1919 subsequent to the date of all the opinions cited thereunder in Vernon’s P. C. of 1925, and it is not now deemed necessary to use the word “willful” in charging any of the offenses defined in said article, -save that of “willfully overloading” some animal in an appropriate case. Nor is it necessary in charging the offense of torturing an animal, which is included in the terms of said article, to allege that same was needless, or that same was done in a cruel and inhuman manner. The latter part of said article specifically sets forth what acts are included in the word “torture,” and it was evidently the intention of the Legislature that upon an allegation of torturing such animal, and a setting out of what was .done, the offense would be satisfactorily alleged.

Appellant was charged with torturing a mule by shooting same. The facts sufficiently show that appellant did shoot said animal in the head, putting out one of its eyes. The shooting occurred in the nighttime, and at a point near appellant’s home. It appears from the. testimony that there was no stock law in force in said locality. As far as we can determine from the record there was open country between the home of the owner of said mule and the home of appellant where the shooting occurred. We learn from the record that on Friday before the shooting Saturday night a neighbor of appellant observed the mule in question reaching over appellant’s fence toward some growing corn, and that ih attempting to get to the corn the mule had pushed some rails off the fence. The next morning appellant was at the home of the owner of said mule when the latter was turned out on the common and asked said owner not to turn the mule out, but to put it in the pasture, telling him at the time of the information he had received relative to the act of the mule in trying to get to his growing crop.

We find nothing in this record indicating the kind or character or make-up of appellant’s fence, save that it was referred to as a rail fence. Nothing indicates its height or the manner of its construction otherwise. Some time Saturday night appellant was awakened by a noise which he testifies sounded like the breaking of a fence or a gate. He jumped out of bed, grabbed up his ten-gauge double-barreled shotgun and went out of his house. According to his own testimony as he “approached the place something ran from the fence into the woods and I shot in the direction it went to scare it away so that it would not come back. It was so dark I could not tell whether it was a mule, horse or cow, and I shot in the direction of the noise it was making as it ran through the woods. I shot at the noise to scare whatever it was away from my fence and to protect my fence and my corn crop. ' * * * I shot No. 4 shot from a ten gauge shot gun, and I shot twice. About fifty panels of my rail fence was pushed down. ⅜ ⅜ ⅜ It was not all down but rails pushed off. The row of corn next to the fence was damaged by being eaten off.” Witnesses for the state testified that they examined the ground the next morning on the outside of appellant’s fence, and that they tracked the mule by its blood on the ground from where it was found after the shooting to a point about thirteen steps from appellant's fence. There they said the tracks of the mule indicated that he had wheeled and run away evidently after being shot.

We find in the record four bills of exception. The first brings forward complaint of the refusal of the court to quash the information. We think the court correctly overruled said motion.

The second bill of exceptions presents complaint of the charge of the court for failing to submit the affirmative defense of the defendant to the effect that he shot at the animal as it ran away from defendant’s fence in order to scare it away so it would not return and depredate upon defendant’s crop. In our opinion a charge of this character would be unwarranted. Our statute, article 1372, P. C., punishes any person who has an insufficient fence, who maims, wounds, or kills any cattle, horses, etc., within the incloSure surrounded by such fence. Certainly if one might not shoot an animal inside an inclosure surrounded by an insufficient fence, he might not under similar circumstances shoot one on the outside merely upon the proposition that he did so for the purpose of scaring it away. According to his own testimony appellant had made no investigation at the time he shot, and at said time, as he testified, ■the animal was running away into the woods. In communities where there is no stock law in force, he who wishes to assert the right to protect his crop against animals must surround the same by a sufficient fence such as is defined in the article above referred to.

The next bill of exceptions complains of the refusal ‘of a special charge as follows: “Gentlemen of the Jury: You are instructed that in the event that you should find and believe from the evidence that immediately prior to the time the mule was shot the mulo was breaking the fence and eating the corn of defendant, and that defendant shot the mule with intent to scare it away from his property, then you will find defendant not guilty.” What we have just above said may be referred to in justification of the action of the trial court in declining to give said charge. There is no testimony in this ease showing that the mule in question was a confirmed fence breaker, or that appellant had around his crop a sufficient fence. That herbivorous animals such as mules, cows, etc., would be attracted by a field of growing corn is well known to every farmer, and no sort of blame can be attached to such animal for attempting to gratify its taste in this regard when there is no sufficient fence protecting the growing corn thus sought by it. The mule in question was out on the common where it had a perfect right to be. His taste for green' corn was according to his nature. If appellant had- a sufficient fence, and this did not protect his crop, he would 'have the right to resort to all other reasonable means necessary to effect that end. That he had such fence is not shown. That at the time he shot this mule it was in the act of running away into the woods is established by his own testimony. That at the time he shot it it was not nearer his fence than thirteen steps is supported by the state’s ' testimony. Nor do we think it a sound proposition to announce that a man who observes an animal reaching over his insufficient fence, or. even pushing at it, to get to corn growing near the fence, has the right to shoot it “with intent to scare it away from his property.”

The remaining bill of exceptions complains of the refusal of another special charge seeking to have the jury instructed that, in the event they found that appellant shot said mule, but should further find that it was not done with the intent to torture the mule, they should find appellant not guilty. In this connection we note that in his charge the court told the jury that every person has the right ,to protect his property from injury, and that he may use all reasonable force to accomplish that object, and that by. reasonable force is meant whatever force is necessary to repel invasion and depredation of property. The court also applied this, and told the jury, if the animal in question was depredating and seriously injuring the crops of appellant, and that it became reasonably necessary to shoot the mule to protect said' crops from injury, then .they should acquit the defendant, or, if they had a reasonable doubt thereof, they should acquit him. The word “torture” in said article 1374, supra, is held to include every act or omission whereby unnecessary or unjustifiable pain or suffering is caused to an animal. Under the charge above given it necessarily followed that the jury believed appellant shot said mule when it was not necessary to do such act to protect his crop, and that such act was hence unjustifiable. We do not think the special charge just referred to presents a correct proposition of law. If the appellant was not justified in shooting the animal, and shooting same was the reasonable result of what appellant did, we think this would show him to be guilty without having any specific intent to torture'.

The judgment will be affirmed.


author: MARTIN, J. LATTIMORE, J.

text:
    NELSON v. STATE.
    No. 13656.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1930.
    Rehearing Denied Feb. 11, 1931.
    Reynolds & Heare, of Shamrock, and J. Everett Cline, of Fort Worth, for appellant.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.

Prosecuting witness, Conway, testified to the unconditional sale to himself by appellant of one quart of whisky, for which he paid him $2.50. He was corroborated by another witness.

The chief contention made on this appeal is the alleged error of the court in failing to define the term “sale.” As already indicated, the testimony for the state showed an absolute sale. Appellant testified that he was standing near when the prosecuting witness asked for whisky for medicinal purposes, and that he then said:

“I told him that he couldn’t buy it but if he would come in the house I would let him have what I had, if it would do him any' good. There was nothing said about the price of it or paying for it, or borrowing it or paying it back or anything of that kind, but it was in my mind that he would replace the whisky.”

We do not think that the quoted testimony called for any charge of the character suggested. The testimony for the state made out a sale, and that for the appellant showed a gift, of the whisky. There was not, in our opinion, any suggestion of barter or exchange or any character of transaction other than either a straight sale' or gift of the whisky in question. Under such circumstanc'es, it was not necessary to define the term “sale.” Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Stephens v. State, 50 Tex. Cr. R. 251, 96 S. W. 7; Young v. State, 92 Tex. Cr. R. 277, 243 S. W. 472.

Special charge No. 6 requested the court to submit the issue of the transaction being only a gift, which was apparently appellant’s theory of the case. The court refused to give this charge, but his action was not excepted to, and, in the absence of such, the question cannot be reviewed. Linder v. State, 94 Tex. Cr. R. 317, 250 S. W. 703.

Finding no error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, J., absent.

On Motion for Rehearing.

LATTIMORE, J.

The only complaint made in appellant’s motion for rehearing is that the court erred in failing to give his special requested charge, in effect, that, if the jury believed from the evidence that the appellant gave ‘the whisky in question to the witness Conway, and that Conway did not pay for the same,-or if they had a reasonable doubt thereof, they should acquit the appellant. Looking to the' exceptions reserved to the court’s charge, we note that' it is stated that the defendant excepts to the court’s main charge, for the reason that nowhere therein is the defendant’s affirmative, theory of defense adequately presented, and that the defendant in this connection requested that the court give defendant’s special requested instruction No. 7. There was no exception to the charge because it did not submit to the jury any affirmative defense based on the proposition of a gift by appellant to the prosecuting witness of the whisky in question. In our original opinion, we assigned as a reason for not holding erroneous the refusal of the trial court to give special charge No. 6 that there was no exception taken in the court below to the refusal of this special charge, and that hence such refusal could not be considered by us. We see no reason for believing that the matter was incorrectly decided. This court has uniformly declined to consider matters of procedure such as this, in the absence of an exception, which must appear either by notation upon the refused special charge or by a separate bill of exceptions. It is not contended that an exception to the refusal of said special charge is before us in either form.

The motion for rehearing will be overruled.


author: CALHOUN, J.

text:
    SPEERS v. STATE.
    No. 13958.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Davenport & Crain, of Wichita Falls, for appellant.
    Lloyd Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, robbery; penalty, five years in the penitentiary.

The record in this case is here without either a statement of facts or any bill of exception and presents nothing for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    KYLES v. STATE.
    No. 14221.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, burglary; penalty, two years in the penitentiary.

The record in this case is here without either a statement of facts or any bill of exception, and presents nothing for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    WALKER v. STATE.
    No. 13966.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Lockhart, Garrard & Brown, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, breaking, pulling down, and injuring fence; penalty, a fine of $10.

The record is here without either a statement of facts or any bills of exception, and presents nothing for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.1


author: LATTIMORE, J.

text:
    ALLVERSON v. STATE.
    No. 14143.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Justice & Sigler, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.

We have carefully scrutinized this record, and are unable to find that any notice of appeal was given or entered as is required by our statute as a prerequisite to the attaching of the jurisdiction of this court.

Being without jurisdiction, the appeal will be dismissed.


text:
    ECHART v. STATE.
    No. 14154.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Ben D. Clower, of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty, confinement in the penitentiary for one year.

. The record is before this court without statement of facts and bills of exception. Appellant entered a plea of guilty to the offense charged in the indictment.

The transcript fails to show any notice of appeal. This is essential to confer jurisdiction on the reviewing court. See article 827, C. C. P., also Stone v. State (Tex. Cr. App.) 31 S.W.(2d) 1077, and cases cited.

The appeal is dismissed.


author: HAWKINS, J. LATTIMORE, J.

text:
    BAILEY v. STATE.
    No. 13802.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    Rehearing Denied Feb. 18, 1931.
    F. G. Yaughn, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor; punishment being one year in the penitentiary.

The alleged purchaser, by his evidence, made out a complete case, and was supported circumstantially by the testimony of his wife. Appellant denied the sale. The issue of fact thus presented was settled by the jury against appellant.

The only bill of exception relates to the argument of the district attorney. The facts apparent from the record, as well as the qualification of the trial judge to the bill manifest no error in the argument complained of.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

When the attorney for the accused made mention of the interest displayed by the prosecuting attorney, in the prosecution of this case, and the proof in the record further shows that the alleged illegal sale of intoxicating liquor was made in the immediate vicinity of the home of said prosecuting attorney, it was not error for him to have said that, when a man got to bootlegging in a block of his home, he had a personal interest in the case.'

We think the case correctly decided in the first instance, and the motion for rehearing will be overruled.


author: HAWKINS, J.

text:
    TARVER v. STATE.
    No. 14076.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    M. E. Lawrence, of Eastland, for appellant.
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the possession of a still for the manufacture of intoxicating liquor; punishment being confinement in the penitentiary for one year.

The record is before this court without a statement of facts.

An application for continuance was overruled, but, if exception was reserved to the action of the court, it is not brought forward by bill of exception.

We observe that appellant is adjudged to be guilty of the offense of “possession of a still.” The sentence is similarly worded. There is no such offense as the mere possession of a still. Appellant was indicted and tried for the possession of a still for the manufacture of intoxicating liquor. The judgment and sentence will be reformed to conform to the indictment and the charge of the court, and appellant is adjudged guilty of the possession of a still for the manufacture of intoxicating liquor.

As thus reformed, ¡the judgment is affirmed.


author: GRAVES, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. WALDO.

    No. 9305.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1930.
    Rehearing Denied Jan. 15, 1931.
    Arterbury & Coolidge, Garrison & Watson, and Jno. T. Garrison, all of Houston, for appellant.
    Fulbright, Crooker & Freeman, W. B. Bates, and T. H. Cody, all of Houston, for appellee.

       Writ of error granted.

   GRAVES, J.

Appellee recovered judgment for damages against appellant, his employer, as for its negligent failure to furnish him a reasonably safe place in which to work, in that, after being advised and warned of the impending danger therefrom, it wrongfully neglected to prevent or stop the practice prevailing among his fellow employees in its office, where he worked, of throwing or shooting metal paper clips at each other around the room, whereby he, not having himself indulged in such practice, in that manner suffered the loss Of an eye at the hands of some other one of the employees he was unable to name. This court heretofore certified to the Supreme Court what it deemed the controlling questions the record on the appeal presented, as follows:

“(1) Did the inquiries submitted by the Court embody such an issue of fact arising out of the pleadings and evidence as could, upon affirmative answers, properly constitute a predicate for liability?
“(2) Were the questions asked the jury a sufficient submission of the issue of negligence presented by the pleadings and evidence?”

That court in an opinion [29 S.W.(2d) 323] through the Commission of Appeals, filed in this court November 24, 1930, answered both questions in the negative, thereby holding in effect that the appellee was not entitled to recover.

The judgment of the trial court will therefore be reversed, and .the cause of action will be rendered in favor of appellant.

On Motion for Rehearing.

After having tried this cause below and on original submission here on the sole theory that appellant was guilty of actionable negligence as affected the appellee, its employee, in failing to furnish him a reasonably safe place in which to do his work, the able counsel for the appellee — following the rendition of it against him by this court in response to the holding of the Supreme Court on certification that the questions asked the jury neither submitted the issue of negligence presented by the pleadings and evidence nor embodied a proper predicate for liability thereunder — ■ on rehearing in this tribunal urges that it should have been remanded for another trial rather than rendered, because “appellee’s pleadings and evidence were sufficient to warrant a submission of an issue of appellant’s negligence in failing to take steps to stop and to stop the practice of clip-shooting, after it had induced appellee to continue in appellant’s employ by representing that the same would be done and as a proximate result of such negligence appellee was injured.”

It may be conceded that the pleadings and evidence were sufficient to raise the issue thus now contended for, but the record undis-puitedly further discloses, not only that neither side requested such an issue iri the trial court, but also that the appellee failed to' even object there to the special inquiries submitting only the safe-place theory, defending it here as the only proper predicate for liability.

In these circumstances it seems clear that he waived any right of recovery he may have had on the newly presented claim of negligence, since' it obviously constituted a complete independent ground of recovery in no way correlative, supplemental, or incidental to the special issues so submitted to the jury, under the holding of our Supreme Court in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, 1085.

The motion for rehearing will therefore be refused.

Rehearing refused.


author: SMITH, J.

text:
    POWER v. POWER.
    No. 8538.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Eellbaum & Fellbaum and Frank J. Bas-kin, all of San Antonio, for appellant.
    J. W. Ragsdale, of Victoria, for appellee.
   SMITH, J.

This appeal is from a: judgment rendered upon an instructed verdict. The! briefs of the parties do not disclose the nature of the controversy, other than by the general statement in plaintiff in error’s brief that: "This was an action to set aside a divorce decree which affected a property settlement between the parties involved which plaintiff in error contends was an unfair and unjust settlement and was agreed to by her by reason of misrepresentations on the part of the defendant in error at a time when she was physically incapable of protecting her rights. Judgment was rendered for the defendant in error by the court on motion of the defendant in error’s attorney asking for a directed verdict in his favor.” No pleading of either party is mentioned, directly or indirectly, anywhere in the briefs, which are equally silent concerning the testimony adduced upon the trial, and no authenticated statement of facts is with the record.

Plaintiff in error grounds her appeal upon three assignments of error, in each of which the judgment is attacked in general terms, because of the claimed insufficiency of the evidence to 'warrant a directed verdict. The assignments are not fortified by any propositions of law, or accompanied by any statement of any pleading or evidence, or record reference thereto. In short, they present nothing for review, and, serving no purpose, must be disregarded. Even if those' assignments were sufficient as such, they could present questions determinable only from the evidence, which cannot be considered in the absence of a statement of facts.

In this situation this court is relegated to an inspection of the record for fundamental error, and, none being apparent, the judgment must be affirmed.


author: ALEXANDER, J.

text:
    PETERS v. HUBB DIGGS CO.
    No. 996.
    Court of Civil Appeals of Texas. Waco.
    Jan. 8, 1931.
    Rehearing Denied Feb. 12, 1931.
    W. W. Alcorn and M. Kleberg, both of Fort Worth, for appellant.
    Geo. Miller, of Fort Worth, for appellee.
   ALEXANDER, J.

This was a suit brought in the county court at law of Tarrant county by Hubb Diggs Company against C. C. Peters on a promissory note for $756.23 and to foreclose a chattel mortgage lien on certain personal property i The defendant filed a general demurrer and a general denial. On February 4, 1930, the date for which the case was set for trial, the defendant and his attorney failed to appear and defend the suit, and judgment was entered for the plaintiff as prayed. The defendant appeals.

The appellant in his propositions 1 to 4 asserts that the plaintiff’s petition was subject to a general demurrer for its failure to allege the value of the personal property covered by the chattel mortgage. It is true that, where a suit is brought in a court of limited jurisdiction, as is the county court, for a debt and to foreclose a mortgage lien, the plaintiff, in order to confer jurisdiction on the court, must allege the value of the mortgaged property at the time of the filing of the suit. Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Butts v. Hudgins (Tex. Civ. App.) 255 S. W. 762. It is the larger of the two, that is, the amount of the debt or the value of the mortgaged property, that determines the jurisdiction of the court, Williams v. Givins (Tex. Civ. App.) 11 S.W.(2d) 224, 225, and if the value of the mortgaged property is not alleged, the jurisdictional amount is not shown.

However, we think this requirement was met by the allegations in the petition. The second paragraph of plaintiff’s petition described the note sued on, and in the third paragraph thereof the plaintiff alleged as follows:

“In order to secure the payment of the above note and as a part of the same transaction the defendant made, executed and delivered to the plaintiff his certain chattel mortgage on the following described personal property, to-wit: One Massie-Harris binder of tbe value of 1100.00 and two Fordson tractors, motor No. 342338 and-respectively, of tbe value of $150.00 and $150.00, respectively.”

Appellant contends that, by tbe above paragraph of plaintiff’s petition, tbe plaintiff did not intend to allege tbe value of tbe mortgaged property at tbe very time of tbe filing of tbe suit, but intended to allege tbe value of tbe property at tbe time of tbe execution of tbe mortgage. We do not tbink tbe petition subject to tbis construction. Every reasonable intendment will be indulged in favor of tbe petition as against a general demurrer. Knoohuizen v. Nicholl (Tex. Civ. App.) 257 S. W. 972. There was no occasion for tbe plaintiff to allege the value of tbe property at tbe time of the- execution of the mortgage. Tbe only purpose for which tbe allegation as to value could bave been made was in order to show tbe jurisdictional amount. We overrule tbis contention.

By bis fifth proposition, appellant contends that tbe petition was defective for failure to allege that tbe plaintiff was tbe owner and bolder of the note sued on. Tbe petition alleges that tbe defendant made, executed, and delivered to tbe plaintiff the promissory note in question, and that the note was payable to tbe order of plaintiff. He further alleges that tbe defendant thereby became bound and liable, and promised to pay tbe plaintiff tbe amount of money specified in tbe note, that tbe note was past due and unpaid, and that demand for payment bad been made. There was nothing to indicate that tbe note bad passed out of plaintiff’s bands. Where a payee in a note brings suit thereon, and there is nothing to indicate that be has parted with title thereto, it is not necessary for him to allege that be is still tbe owner and bolder of the note. Bryan v. Wharton Bank & Trust Co. (Tex. Civ. App.) 174 S. W. 827; Barton v. Pochyla (Tex. Civ. App.) 243 S. W. 785 (writ refused).

Tbe appellant insists that tbe trial court erred in overruling tbe motion for new trial. Tbe judgment was rendered on February 4, 1930, on tbe date for which tbe case was regularly set for trial. On tbe following day, M. Kleberg, as amicus curte, filed a motion for new trial, in which be alleged that W. W. Alcorn, the attorney for tbe defendant,' bad gone to Montague county for the purpose of trying- a murder case, and that be was actually in attendance on tbe district court in that county on tbe date on which tbis case was tried, and that it was impossible for him to be present at tbe trial of tbe case. Tbe only answer that bad been .filed by tbe defendant was a general demurrer and a general denial. Tbe motion for new trial did not allege any defense to tbe cause of action sued on. It was not sworn to nor supported by affidavits. Tbis motion remained on tbe docket until February 27th, when it was by tbe court overruled. Tbe order overruling tbe motion states that tbe defendant failed to appear and prosecute tbe same. There was no evidence introduced to show that tbe facts stated in tbe motion were true.

Where a defendant seeks to set aside a default judgment, two things must appear: First, that he has a meritorious defense to tbe cause of action sued on; and, second, a clear case of diligence, that is, that be was prevented from presenting bis defense by fraud, accident, or acts of tbe opposite party wholly unmixed with any fault or negligence on his part. Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230. In tbe case at bar, tbe defendant not only failed to allege or prove any defense to the cause of action sued on, but wholly failed to account for bis failure to appear and present bis defense at tbe proper time. Tbis assignment is overruled.

We bave considered all other assignments presented, and same are overruled. Tbe judgment of tbe trial court is therefore affirmed.


text:
    McKINNEY et al. v. STONEHAM et al.
    No. 9517.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1931.
    Uvalde Burns, of Houston, for appellants.
    J. B. Leigh, of Navasota, for appellees.
   GRAVES, J.

Appellants bave filed in tbis court their brief in tbis cause in tbe form of a written memorandum, in which they in effect recite that the only question the appeal involves is whether or not the same parties to the same cause of action may bring a second suit thereon in the same court, where the court sustains a general demurrer to their first suit and they decline either to amend their pleadings or to appeal from the judgment dismissing the cause; they assert that such dismissal of the former suit is not a bar to another action upon the same cause, saying in that connection: “The dismission of the case, therefore, is the immediate consequence rather of the failure to amend, than of the judgment upon the demurrer; and whatever the form of the judgment, its effect, it is conceived, is the same.’ It operates a dismission of the suit merely and is not a bar to another suit for the same cause.”

On the contrary, we regard it as settled law in this state that a judgment sustaining a general demurrer is as final and conclusive as if rendered upon a hearing of the facts, and, if such judgment is not appealed from, the plaintiff is thereby precluded from a recovery in a second suit between the same parties in the same cause of action to which the demurrer has been sustained. Carpenter v. Landry, 45 Tex. Civ. App. 507, 101 S. W. 277, and authorities there cited.

Judgment of the trial court will therefore be affirmed.

Affirmed.