author: MARTIN, J. MARTIN, J. LATTIMORE, J.

text:
    DEUSCHLE v. STATE.
    (No. 11086.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    State’s Rehearing Granted Dec. 14, 1927.
    Rehearing Denied April 11, 1928.
    On State’s Motion for Rehearing.
    1. Weapons <&wkey; 7 — Unlawful purpose and intent precludes right to carry pistol on public road running through owner’s premises (Pen. Code 1925, arts. 483, 484).
    Right of owner of premises to carry pistol on public road running through the premises, under Pen. Code 1925, arts. 483, 484, which exempts carrying of arms on one’s own premises, cannot coexist with unlawful purpose and -intent in carrying pistol.
    2. Assault and hattery &wkey;o92 — Evidence of intent in carrying pistol on public road through defendant’s homestead, where assault was proved, sustained conviction for assault while unlawfully carrying pistol (Pen. Code, 1925, arts. 483, 484, 1151; Const. Bill of Rights, § 23).
    Evidence of unlawful purpose of defendant in carrying pistol into and across public road which ran through her homestead separating her tracts of land held to sustain conviction, under Pen. Code 1925, art. 1151, for assault on another while unlawfully carrying pistol, where assault was sufficiently proven, since under circumstances unlawful intent destroyed defendant’s right to carry arms, under Pen. Code, arts. 483, 484, in view of Const. Bill of Rights, § 23.
    On Motion for Rehearing.
    3. Weapons <&wkey;6 — Person may not carry pistol from place to place idly, or habitually, or for unlawful purpose (Pen. Code 1925, arts. 483, 484).
    While one may carry pistol from place where same is legitimately had to another like place for some legitimate purpose, person has no such right to carry such pistol idly, or merely for sake of carrying it, or habitually, or for some unlawful purpose, under Pen. Code 1925, arts. 483, 484.
    4. Weapons <&wkey;17(2) — Person carrying pistol idly across property of others or public has burden to prove carriage was lawful (Pen. Code 1925, arts. 483, 484).
    One may not idly or without lawful purpose carry a pistol from one place to another across property of others or public, under Pen. Code 1925, arts. 483, 484, and such carriage when proved is deemed unlawful, and burden of proving it was lawful is generally on the person accused.
    Commissioners’ Decision.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Annie Deuschle was convicted of assault with a prohibited weapon, and she appeals.
    Affirmed.
    Morris Brin and M. F. Cate, both of Terrell, and Wynne & Wynne, of Kaufman, for appellant.
    M. Ashworth, Co. Atty., of Kaufman, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was convicted under article 1151 of the Penal Code 1925; the indictment charging that while unlawfully carrying on and about her person a pistol she unlawfully and willfully made an assault upon Martha Weiland.

Under this indictment it devolved upon the state to show (1) that appellant unlawfully assaulted the prosecuting witness with a pistol, and (2) that the pistol was then and there being unlawfully carried by appellant. Article 1151, P. C.; Reneau v. State, 106 Tex. Cr. R. 250, 291 S. W. 899. The evidence we deem sufficient upon the first of these issues and that upon the second issue was substantially as follows: A public road ran through the homestead of appellant; the house, barn, and cow lot were on one side of this road and a cow pasture in which the milch cows were kept 'was immediately opposite on the other side of the road; there being about 100 acres on one side of the road and about 10 acres on the other side. The appellant had a pistol on the date of the offense in the public road between her residence and the cow pasture and on said oc-, casion, the state’s witnesses testified, fired two shots towards the prosecuting witness, who was passing in an automobile. The testimony for appellant shows that she had been across the road after the cows and returning fired a shot at a rabbit. It further shows the impossibility of appellant’s using her homestead without using the public road, the title to which road in the public it seems amounted only to an easement, the fee remaining in the appellant’s husband. This case turns upon the sufficiency of the above evidence to show that appellant was unlawfully carrying the pistol when the alleged assault was made. Judge Hurt summarily disposes of a similar contention in the ease of Ball v. State (Tex. Cr. App.) 25 S. W. 627, in the following language:

“Appellant carried the pistol on a public road. The road ran through the premises of Mr. Stanford. That point of the road at which appellant carried the pistol was situated on Stanford’s premises — his homestead. Appellant lived with Stanford; he had no other home. Did he violate the statute prohibiting the carrying of a pistol? He did not.”

To the same effect is Ross v. State (Tex. Cr. App.) 28 S. W. 199. See, also, the following cases: Mendez v. State, 94 Tex. Cr. R. 272, 250 S. W. 680; Parker v. State, 76 Tex. Cr. R. 260, 174 S. W. 343. Under these authorities the evidence was clearly insufficient to show the existence of one of the indispensable elements of the offense denounced in article 1151, P. O.

Article 483, P. C., makes the carrying of a pistol unlawful and article 484, P. C., excepts out of the operation of article 483, peace officers, the carrying of arms on one’s own premises, persons traveling, and others. One whom the facts place clearly within any of the exceptions contained in article 484, P. O., cannot be prosecuted for the offense of unlawfully carrying a pistol, whatever may have been his intent in carrying it. Herein lies the distinction between cases like Moore v. State, 86 Tex. Cr. R. 502, 217 S. W. 1036, and the instant case. The evidence shows appellant within one of said exceptions, viz;.: The carrying of a pistol on one’s own premises. This being established, the state’s case fails under the indictment herein.

It does not follow, of course, that the appellant has violated no law under the testimony of the state’s witnesses; but, the prosecution instituted being for an offense which demanded proof beyond a reasonable doubt of the unlawful carrying of a pistol, and this proof in our opinion 'being insufficient, 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.

On State’s Motion for Rehearing.

MARTIN, J.

In our original opinion we reluctantly followed the case of Ball v. State (Tex. Cr. App.) 25 S. W. 627, which was interpreted by us to mean that a public road running through a homestead was a part of the premises, as that word is used in article 484 of the Penal Code, so that a person in posses, sion of same charged with unlawfully carrying a pistol came within one of the exemptions named in said article. The facts of the Ball Case are meagerly stated and perhaps a fuller statement might disclose that it is not out of line with what upon fuller consideration we now believe is the correct rule in cases of this character. If our original interpretation be correct then the Ball Case is unsound and any express or implied holding of same as interpreted above is overruled.

One of the jury questions in this case was whether or not appellant had the pistol at the time of the assault for an unlawful purpose. She had the right to the full use of the public i*oad in question in the performance of any act or thing pertaining to the legitimate use and enjoyment of her premises and when so using it did not violate the pistol law in having with her such a weapon on the public road. It would, we think, however, be stating the rule too broadly and be provocative of too much mischief to say that she would have the right to carry prohibited weapons upon such a road irrespective of her intent and purpose in having same. Athough a public road running through a homestead may be a part of the premises for the purpose of their legitimate use and enjoyment by the owner, the real right of possession to such road belongs in the public so as to exclude its use by such owner for an illegal purpose not in any way connected with the right of use and possession of the'premises through which the road runs..

Section 23 of the Bill of Rights to our state Constitution provides:

“Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the state; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

In response to and in furtherance of said permissive clause, the Legislature to prevent crime has prohibited the carrying of certain arms with the exemptions set out in article 484 of the Penal Code. This class needs no further authority than the terms of the statute as a defense and-having the right by law to carry a pistol; the purpose in carrying same is immaterial. There is, however,’ a second class, not defined by statute, which under our decision are exempted from the operation of the pistol law. Their right to carry a pistol may be said in a general way to be an incident of their constitutional right to own, possess, and bear arms. The following Texas cases illustrate this class:

A weapon may be lawfully carried to one’s home, place of business, or to a repair shop for the purpose of repairing it. Mangum v. State (Tex. Cr. App.) 90 S. W. 31; Roberts V. State, 60 Tex. Cr. R. 112, 131 S. W. 321; Morris v. State, 73 Tex. Cr. R. 67, 163 S. W. 709; Fitzgerald v. State, 52 Tex. Cr. R. 266, 106 S. W. 365,124 Am. St. Rep. 1095. Or a pistol may be carried from store to store in search of ammunition. Waddell v. State, 37 Tex. 354. Or at the direction of his employer an employee may carry to another store. Huff v. State, 51 Tex. Cr. R. 441, 102 S. W. 407. He has a right to carry the pistol to deliver it to the party to whom he sold it. Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197. Section 987, Branch’s Penal Code, states the rule broadly in pistol cases as follows:

“An act in violation of ‘the letter but not of the spirit of the law is no offense.”

See, also, Moore v. State, 86 Tex. Cr. R. 502, 217 S. W. 1036; Elliott v. State, 39 Tex. Cr. R. 242, 45 S. W. 711.

In the second class of cases the right to carry a pistol cannot coexist with an unlawful purpose and intent in carrying it. When the purpose for which it was being carried ceased, the legal right to carry it also ceased, while in the first class of cases mentioned above such purpose could not be inquired into, if the facts conclusively showed that the person charged was within one of the exceptions of the statute.

We have concluded that the facts of this case place it within the second of said classes instead of the first, as formerly held.

The appellant had the undoubted right to go upon the public road with a pistol in making a journey to and from her separated tracts of land for the purpose of transacting business legitimately connected with the operation of her premises, but, when her purpose was unlawful and had no legitimate connection with the business arising out of or incident to her possession and enjoyment of the premises, her right to have a pistol ceased and her act in carrying it thereupon became unlawful.

Errors of omission occurred in the court’s main charge of which complaint is made. Special charges given at the request of appellant, we think, cured these errors. Their interest to the bench and bar do not justify the use of lengthy space in their discussion. The charges are, as a whole, if anything, perhaps more liberal than appellant was entitled to.

Believing that no error was committed, the judgment heretofore entered reversing and remanding this cause is hereby set aside, 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 Motion for Rehearing.

LATTIMORE, J.

That one may carry a pistol from a place where same is legitimately had to another like place for some legitimate purpose seems uniformly held; but this does not mean that such person may so carry such weapon idly, or merely for the sake of carrying it, or habitually, or for some unlawful purpose. Cassi v. State, 86 Tex. Cr. R. 369, 216 S. W. 1099; Moore v. State, 86 Tex. Cr. R. 502, 217 S. W. 1036. We did not intend any expression in our judgment of affirmance herein to be understood otherwise. Appellant defended in this case on the theory that she did not carry across the public road in front of her house the pistol with which the alleged assault, if any, was made, but that she took it no further than to her gate, where she left it while she went across the road and returned. The state’s witness Howard testified that appellant took the pistol from her pocket and fired it while in said public road, and this gave rise to the issue chiefly discussed in the opinion heretofore, as to whether she would be guilty in the event she did so carry said pistol on and across said road.

We have carefully considered the able motion for rehearing, but are not satisfied that the Ball Case, referred to in our former opinion, or the Ross Case, 28 S. W. 199, would justify us in holding that one might legally carry a pistol on a state highway under facts such as appear in this case. Nothing in either of the cases referred to apply to the character of case or the kind of road which appears here. The road referred to in said cases might easily have been a second or third class or even a neighborhood road as defined by our statute. If the facts in this case justified the jury in finding that appellant carried the pistol in question to a point in the public road and that she there shot same at the alleged injured party, then in our opinion they were warranted in the verdict of guilty. Appellant herself swore: “I had no business to take the pistol with me across the road.” “Before I went after the cows I laid the pistol inside the yard.” Granting the right then of one under circumstances showing some need or lawful reason to carry a pistol from one premise to another, we are forced to hold a discussion of such right merely academic here for the reason that appellant not only did not furnish proof of some lawful purpose in such carriage, but denies that she did tarry said pistol from her yard across the road to the pasture. To be sure we recognize the rule that, if evidence other than that of the accused raises or supports the proposition that she lawfully carried the pistol from one premise to another, this would be enough to properly raise the issue, but there is no such other evidence in this case.-

One cannot idly or without lawful purpose carry a pistol from premise to premise across the property of others or of the public ; and such carriage when proven is deemed unlawful, and the burden of proving thac such carriage was lawful and within sonqe of the exemptions is upon the accused, as appears in Bridgers v. State, 8 Tex. App. 145; Stilly v. State, 27 Tex. App. 445,11 S. W. 458, 11 Am. St. Rep. 201; Williams v. State, 74 Tex. Cr. R. 639,169 S. W. 1154; Blair v. State, 26 Tex. App. 387, 9 S. W. 890; Hunter v. State, 73 Tex. Cr. R. 459, 166 S. W. 164. In the well-considered case of Moore v. State, 86 Tex. Cr. R. 502, 217 S. W. 1036, it seems held that when the facts are presented on which a defensive issue depends and the jury resolves same against the accused, if sufficient to support the finding, this would be conclusive. The reasoning of the court in that ease seems applicable here.

Being unable to agree with appellant’s contention, the motion for rehearing is overruled.
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source: Caselaw Access Project

author: CHRISTIAN, J. MORROW, P. J.

license: Public Domain

text:
    BRATTON et al. v. STATE.
    (No. 11386.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    Rehearing Denied April 11, 1928.
    1. Bail <⅞⅛»94 — Briefs on appeal from judgment on forfeiture of bail bond must be filed as in civil cases (Rev. St. 1925, art. 2283; Code Cr. Proc. 1925, art. 856).
    On appeal from final judgment on forfeiture of bail bond, briefs must be filed in trial court and Court of Criminal Appeals in compliance with law and rules governing civil cases, under Rev. St. 1925, art. 2283, and Code Cr. Proc. 1925, art. 856.
    On Motion for Rehearing.
    2. Bail <&wkey;94 — Forfeiture of appearance bond, taken after appeal bond was approved, held not fundamental error reviewable without showing filing of brief in trial court .(Rev. St. 1925, art. 2283; Code Cr. Proc. 1925, arts. 817, 818, 856).
    Forfeiture of appearance bond, taken after appeal was perfected and appeal bond executed and approved, on appellant’s failure to appear in district court for retrial, held not fundamental error, and hence not reviewable without showing that brief was filed in trial court or such filing waived, as required by Rev. St. 1925, art. 2283, and Code Cr. Proc. 1925, art. 856; appeal bond obligating him to appear before appellate court under Code Cr. Proe. 1925, arts. 817, 818.
    Commissioners’ Decision.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Proceedings by the state of Texas against J. E. Bratton and others to forfeit a bail bond. From a final judgment on forfeiture of the bond, defendants appeal.
    Appeal dismissed.
    Geo. L. Huffman, of Marshall, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the "State.
   CHRISTIAN, J.

This is an appeal from a final judgment upon forfeiture of a bail bond.

There is nothing in the record showing that any briefs were filed in the trial court. The case was submitted in this court on the 15th day of February, 1928. Brief for appellants was filed here on the 14th day of February, 1928. It is the uniform holding of this court that in cases such as this briefs must be filed in the trial court and in this court in compliance with the law and rules governing civil cases. We quote from Bates et al. v. State, 104 Tex. Cr. R. 273, 283 S. W. 794, as follows:

“There is nothing in the record to show that any brief, or copies of the brief, were filed in the trial court within the time and in keeping with the requirements of the rules pertaining to civil cases, nor is it briefed in this court in keeping with the rules applicable to civil cases. We are therefore, on this account, without authority .of law to pass upon the merits of the case.”

See Swim v. State, 86 Tex. Cr. R. 576, 218 S. W. 761; Davis v. State, 88 Tex. Cr. R. 313, 226 S. W. 409; Grammer v. State, 89 Tex. Cr. R. 187, 230 S. W. 165; Wimberly v. State, 99 Tex. Cr. R. 652, 271 S. W. 608; Walker v. State, 100 Tex. Cr. R. 176, 272 S. W. 462.

The appeal is dismissed.

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 Motion for Rehearing.

MORROW, P. J.

The announcement in the original opinion that in an appeal from a forfeited appeal bond the record will not be reviewed in the absence of a showing that a brief had been filed in the trial court in accord with the statutory rules on the subject or a waiver of such filing, is supported by the following authorities: Article 2283, Revised Civil Statutes, 1925; article 856, C. C. P. 1925; Reddell v. State, 99 Tex. Cr. R. 230, 268 S. W. 458; Lewis v. State (Tex. Cr. App.) 38 S. W. 205; Mayer v. State (Tex. Cr. App.) 24 S. W. 408; Frost et al. v. State (Tex. Cr. App.) 57 S. W. 669, and other cases collated in Vernon’s Ann. Tex., C. C. P., vol. 3, p. 311; also Grammer et al. v. State, 89 Tex. Cr. R. 187, 230 S. W. 165. Appellant insists, however, that in the present case there is fundamental error, and that under such circumstances an exception to the rule mentioned exists, citing Bates v. State, 104 Tex. Cr. R. 273, 283 S. W. 794. We fail to perceive the relevancy of • the citation. In that case there was a dismissal of the appeal for the want of proper appeal bond, and the rule touching the necessity for filing a brief in the trial court was specifically reaffirmed. If properly understood, the appellant’s claim that there is fundamental error is based upon the alleged fact that at the time of the trial he was in jail; that the appearance bond which was forfeited, was taken after the appeal had been perfected and the appeal bond executed and approved. He had made no appearance bond and release was denied him until an appearance bond was made. It is his position, as we understand it, that the appearance bond was void because he was illegally held in custody after perfecting the appeal. On appeal, November 11, 1925, his case was reversed. See Bratten v. State, 102 Tex. Cr. R. 181, 277 S. W. 387. Upon the call of his case in the district court for retrial, he failed to appear and á forfeiture of his bond was ordered. Nothing m the record impresses tins court that it is authorized to review the question suggested in the absence of compliance with the law requiring a brief. , We will add that the soundness of the appellant’s contention that by reason of the facts mentioned the appearance bond would be void is not clear. By the terms of the appeal bond or recognizance one appealing is obligated to appear before this ’court and to abide by its judgment. See articles 817 and 818, O. O. P. 1925. It has been held that on the reversal of the judgment on appeal, a forfeiture of the appeal bond is not authorized upon his failure to attend the district court. See Sanders v. State, 70 Tex. Cr. R. 532, 158 S. W. 291; Wells v. State, 21 Tex. App. 591, 2 S. W. 806; Ex parte Gibson, 104 Tex. Cr. R. 161, 283 S. W. 795; Wiseman v. State, 70 Tex. Cr. R. 477, 156 S. W. 683.

As stated above, the disposition of this hearing is based upon the conclusion that because of the failure to show the filing of a brief in the lower court or .waiver of such brief, this court must,- unless it overruled many decisions, refuse to entertain the appeal. The other remarks are made in view of the contention that there is an exception where there is fundamental error. We are of the opinion that there is no fundamental error, and, as indicated above, are not prepared to say that the bond upon which the forfeiture was taken was invalid. Upon that subject, however, we express no definite opinion because it is not necessary in the decision of the case.

The motion is overruled.
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author: LATTIMORE, J.

text:
    WOOTEN v. STATE.
    (No. 11401)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1. Criminal law &wkey;> 1144(19) — Appeal will not be dismissed for failure of record to show amount of appeal bond was fixed by trial court, there being presumption of legality.
    Appeal from conviction for misdemeanor swindling will not be dismissed for failure of record to affirmatively disclose that amount of appeal bond had been fixed by trial court, for, while statute requires that amount of such bond be fixed, in absence of affirmative showing that it was not fixed by court,- reviewing court will indulge usual presumption of legality.
    2. False pretenses ¡&wkey;>44 — In prosecution for swindling, testimony that bank which refused payment under agreement to limit withdrawals had honored checks exceeding agreed amount held admissible.
    In prosecution for misdemeanor swindling in which bank refused payment of check given by defendant because of agreement not to withdraw more than $20 a month, exclusion of testimony that cheeks had been honored in one month for amount exceeding $20 held, error, since essential element of offense is that accused must have no good reason for believing check will be paid.
    3.False pretenses &wkey;3'44 — in prosecution for swindling, defendant’s evidence that he believed check given would be paid held admissible.
    In prosecution for misdemeanor swindling in which bank refused payment of defendant’s check under agreement to limit withdrawals to $20 a month, exclusion of defendant’s testimony that when he gave check he believed it would be paid when presented because of amount of money he had in bank and because he had been permitted to withdraw more than $20 a month in other months held error.
    Appeal fro-m 'Hunt County Court; N. E. Peak, Judge.
    R. W. Wooten was convicted of swindling, and he appeals.
    Reversed and remanded.
    Ben P. Cowrie, of Greenville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for misdemeanor, swindling; punishment, a fine of $25 and 60 days in the county jail.

This appeal was dismissed at a former ’ day of this term because of a supposedly defective record. Re-examination of same has led us to the conclusion that the appeal should be reinstated, and it is accordingly done. The basis of the dismissal was the fact that the record failed to affirmatively disclose that the amount of the appeal bond had been fixed by the trial court, and Hardeman v. State, 100 Tex. Cr. R. 358, 273 S. W. 584, was relied upon for authority. In that case we held, in substance, that the record on appeal must affirmatively make apparent the fact that the amount of the bond had been fixed by the trial court prior to the taking of such bond. The only authority cited in our opinion for such holding was Turpin v. State, 86 Tex. Cr. R. 96, 215 S. W. 455. We are of opinion that this court misconceived the effect of the holding in the Turpin Case, supra, for we find on closer analysis of same that the record on appeal in that case affirmatively showed that the amount of the bond was not fixed by the trial court. While the statute requires that the amount of such bond be fixed by the court below, we are of opinion that in the absence of some affirmative showing in the record that the amount of such bond had not been’ fixed by such court, we would indulge the usual presumption of regularity. Such appears the effect of the holding in the Turpin Case, supra. The Wiseman Case, 70 Tex. Cr. R. 477, 156 S. W. 683, which’ is discussed and. cited as authority in the opinion in the Turpin Case, as well as the authorities cited in said Wiseman opinion, seem in accord with the conclusion now announced. We are of opinion that the case of Hardeman v. State, supra, announces an incorrect conclusion, and the same will be overruled. The opinion dismissing this case is withdrawn, the mandate issued on the judgment of dismissal is recalled, the appeal reinstated and now considered on its merits.

Appellant purchased certain articles of merchandise, giving therefor a check' drawn on the First National Bank of Quin-lan, Tex. Prom the record it appears without dispute that he had on deposit with said bank at the time the sum of $77. Upon the proposition that the bank had an oral agreement with appellant by which he bound himself not to draw more than $20 a month for use in purchasing groceries, and that he had already checked out that amount during the current month, the bank refused payment of said cheek. Appellant offered to prove on this trial that subsequent to the date of the alleged agreement referred to his checks on said bank had been honored in one month for an amount exceeding $20. The court excluded this testimony, and in this we are of opinion that error appears. One of the essential elements of this offense is that the accused “has no good reason for believing his check will be paid when presented in the ordinary course of business.” It would appear material to appellant’s contention that he believed the check in question would be paid when presented to prove that other checks, given during the same month, exceeding the amount of $20 had been paid by the bank. As touching his good faith in the transaction, appellant offered to testify that when he gave the check in question he believed it would be paid when presented for payment because of the amount of money he had in the bank and because of the fact that he had been permitted to withdraw more than $20 during some other month. Upon objection he was not allowed to testify to his belief in this regard. This also seems an error.

For the errors mentioned, the judgment will be reversed and the cause remanded.
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author: CHRISTIAN,- J,

text:
    TAYLOR v. STATE.
    (No. 11451.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    I.Embezzlement <&wkey;31 — Allegation in complaint and information for theft by bailee that agent “was thereunto duly authorized by” owners sufficiently alleged authority to make contract.
    Allegation in complaint and information for theft by bailee that owners’ agent “was thereunto duly authorized by the said” owners held sufficient allegation of agent’s authority to make contract of hiring.
    2. Embezzlement <&wkey;33 — Rutes as to alleging and proving want of owners’ consent apply to theft by bailee.
    Rules in cases of ordinary theft, relative to alleging and proving want of owners’ consent, apply to eases of theft by bailee.
    3. Embezzlement <&wkey;44(6) — State, alleging
    ownership in one person and possession in another, must prove that neither consented to conversion in trial for theft by bailee.
    Where ownership of property converted by bailee is alleged in one person and possession in another, state is required to prove want of consent of each in trial for theft.
    4. Embezzlement &wkey;>35 — State must sustain allegation of complaint and information for theft by bailee that property was converted without owners’ consent.
    Where complaint and information for theft by ’bailee alleged that property was converted without owners’ consent, it was incumbent on state to sustain such allegation.
    5. Embezzlement. <&wkey;44(6) — Want of owners’ consent to conversion cannot be proved! by circumstantial evidence in trial for theft by bailee, where positive or direct proof is available.
    Under certain conditions, want of owners’ consent to conversion of property may be proven by circumstantial evidence in trial for theft by bailee, but not where positive or direct proof thereof is available.
    6. Criminal law <S&wkey;698(I) — Failure to make timely objection to circumstantial evidence of want of owners’ consent to conversion waives right to require direct evidence thereof in trial for theft by bailee.
    Accused’s failure to make timely objection to circumstantial evidence of owners’ want of consent to conversion in trial for theft by bailee is waiver of right to require proof thereof by positive or direct evidence available to state.
    7. Criminal law &wkey;>308 — Conviction of theft by bailee cannot stand, unless evidence of want of owners’ consent to conversion overcomes presumption of innocence.
    Conviction of theft by bailee cannot stand, unless evidence relative to want of owners’ consent to conversion is sufficient to overcome presumption of innocence and form basis of judgment.
    8. Emhezztement <&wkey;44(6) — Agent’s statement that he did not hear principals’ consent to bailee’s conversion of gun held not to show want of consent, as required to support conviction of theft.
    Statement of owners’ agent that he did not hear them give their consent to conversion of gun by bailee held insufficient to show want of consent, and hence insufficient to support conviction of theft by bailee.
    Commissioners’ Decision.^
    Appeal, from Harris County Court at Law; Ben F. Wilson, Judge.

      W. B. Taylor, alias C. N. Nelson, was convicted of theft by bailee, and be appeals.
    Beversed and remanded.
    Warren P. Castle, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN,- J,

The offense is theft by bailee, a misdemeanor; the punishment a fine of $10 and confinement in jail for one day.

Appellant moved to quash the complaint and information on the ground that they did not allege that D. K. Evans, as agent of the owners.of the gun, was duly authorized to make a contract of hiring with him. Appellant’s motion was properly overruled. A. E. Worley and A. May were alleged to be the owners of the converted property. It was expressly alleged in the complaint and information that the agent “was thereunto duly authorized by the said A. E. Worley and A. May.”, This was sufficient allegation of the agent’s authority to make the contract of hiring. Evans v. State, 70 Tex. Cr. B. 79, 155 S. W. 531.

It was alleged in the complaint and information that the property was converted by appellant without the consent of the agent and without the consent of the owners thereof. It was directly shown that the agent did not give his consent to the conversion. There was no proof, other than a statement by the agent to the effect that he did not hear them give their consent to the conversion, showing want of consent by the owners of said property. The rules in eases of ordinary theft relative to alleging and proving want of consent apply to cases of theft by bailee. Where ownership is alleged in one person and possession in another the state is required to prove the want of consent of each. Branch’s Annotated Penal Code, § 2452; Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893. The complaint and information having alleged that the property was converted without the consent of the owners thereof it was incumbent upon the state to sustain such allegation.

Under certain conditions want of consent may be proven by circumstantial evidence. Branch’s Annotated Penal Code, ' § 2452; Brown v. State, 58 Tex. Cr. B. 336, 125 S. W. 915. Where positive or direct proof as to want of consent is available, circumstances alone cannot be resorted to. Brown v. State, supra. In order to require the state to produce positive or direct proof when available to prove want of consent it is necessary that the accused timely object to the use of circumstantial evidence. The failure to object to the use of circumstantial evidence is a waiver of the right of the accused to require that the proof relative to want of consent be made by direct evidence. Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227; Brown v. State, supra. However, a conviction cannot stand unless the evidence relative to the want of consent is sufficient to overcome the presumption of innocence. The evidence as to want of consent must be legally sufficient to form the basis of the judgment. Meredith v. State, supra. In the instant case, the circumstances relied upon by the state to show the want of consent of the owners of the property were insufficient. It necessarily follows that the evidence is insufficient to support the conviction.

The judgment is reversed and the cause remanded.

PEB OUBIAM.

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.
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author: MARTIN, X DATTIMORE, J.

text:
    DIPPLE v. STATE.
    (No. 11356.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied April 11, 1928.
    1. Criminal law <§=730(3) —District attorney’s reference to liquor as whisky instead of brandy h.eld not reversible where objection was sustained.
    In prosecution for possessing brandy capable of producing intoxication, reference by district attorney, in questions, to liquor in question as whisky held not to justify reversal, where defendant’s objection wa's sustained.
    On Motion for Behearing.
    2. Criminal law <&wkey;656(3) — Where question whether liquor was intoxicating was 'objected to as repetition, court’s remark in sustaining objection that witness had already testified it was intoxicating held not error (Code Cr. Proc. 1925, art. 707).
    Where, in prosecution for possessing liquor, witness was asked whether liquid was intoxicating and defendant objected because this was repetition, court’s remark in sustaining objection that witness had already testified that he drank it and that it was intoxicating held not erroneous as comment on weight of testimony nor indication -of court’s opinion within Code Or. Proc. 1925, art. 707.
    Commissioners’ Decision.
    Appeal from District Court, Young County; E. G. Thornton, Judge.
    Will Dipple was convicted of possessing liquor capable of producing intoxication, and he appeals.
    Affirmed.

      Binkley & Binkley, of Graham, and Warren W. Moore and Audley Harris, both of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, X

Offense, the unlawful possession for the purpose of sale of spiritous liquor capable of producing intoxication; penalty, one year in the penitentiary.

Complaint is made of the following matter: While the witness for the state, Smith Houston, was testifying, the district attorney was permitted to propound the following question: “Was the liquor intoxicating?” Counsel for appellant objected to said question as repetition, whereupon the court in sustaining the objection remarked: “He has already testified he drank it and that it was intoxicating.” The bill fails to show, as it should, what witness Houston had theretofore testified. The statement of facts shows, however, that he had testified that the liquor was intoxicating. It has been frequently held that the remark of a trial judge not calculated to operate prej-udicially to the accused was not reversible error. Wilson v. State, 17 Tex. App. 535; House v. State, 19 Tex. App. 239; Wofford v. State, 60 Tex. Cr. R. 628, 132 S. W. 929; Branch’s P. C. § 270. The effect of the remark of the court was merely to repeat the contention of counsel of appellant in the presence of the jury and we are not able to perceive how the same could have injured appellant.

The further contention is made that there was error because the district attorney in his questions referred to the'liquor in question as whisky when it was in fact brandy. The court sustained appellant’s objection, but he seems to present the point that the mere asking of the question was so highly prejudicial as to constitute error. In a brief filed by appellant no authorities are cited, and we do not believe any authority exists, to support appellant’s contention that a trifling matter of this kind would justify a reversal.

The evidence in our opinion being sufficient and no errors appearing 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.

On Motion for Rehearing.

DATTIMORE, J.

Appellant insists that we erred in practically each point decided in the original opinion. The testimony in the case was short. Four bills of exception were reserved. We have again reviewed each.’ We cannot comprehend how the reference to the liquor sold by appellant as whisky, by the district attorney, could have inflicted injury-No testimony is offered supporting any inference that the jury were prejudiced or misled or influenced thereby. The second bill of exceptions which complains of repeated leading and suggestive questions fails to set out any questions or any fact supporting the contention.

The third bill sets out that while Smith Houston was being examined he was asked whether or not the liquid was intoxicating. Counsel for appellant objected because this-was but repetition. The court sustained the-objection, saying, “He has already testified he drank it and that it was intoxicating.” The statute (article 707, C. C. P. 1925) says the court shall not comment upon the weight of the testimony, or its bearing on the case,, nor make any remark calculated to convey to the jury his opinion of the case. It is held that for the court, in ruling upon an objection made, to say that the question has been answered is not erroneous. Bonners v. State (Tex. Cr. App.) 35 S. W. 669; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595. This bill does not show that the question had not already been asked and answered in the affirmative. That it had been asked is evident from the very objection made, which was that it was a repetition. If the question had been asked and had been answered in the affirmative, then certainly the statement of that fact' by the court was not a comment on- the weight of the testimony nor- an indication of the court’s opinion regarding the matter.

We are of opinion that the case was correctly decided, and the motion for rehearing will-be overruled.
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author: McCLENDON, C. J.

text:
    BERRY et al. v. O’HAIR.
    (No. 7199.)
    Court of Civil Appeals of Texas. Austin.
    March 7, 1928.
    Rehearing Denied March 28, 1928.
    1. Appeal and error &wkey;>l44 — Party as to whom suit for injunction was dismissed has no right to appeal.
    Party who disclaimed interest in property, and as to whom suit to enjoin guardian’s sale of property was dismissed, had no right to appeal therefrom.
    2. Appeal and error <&wkey;-l4l— Guardian, enjoined' from selling property on theory that order for-sale was void, has right to appeal.
    In suit by wife of incompetent to enjoin sale of property by his guardian, on theory that wife owned property in her own right, and that appointment of guardian was void because court lacked jurisdiction, although guardian was-not sued in representative capacity, and judgment granting injunction did not determine question of title as between plaintiff and her husband, effect of injunction was to. hold order appointing such guardian null and void, and defendant had right to appeal therefrom.

      3. Appeal and error <&wkey;78l (4) — Where incompetent has died, appeal from injunction preventing his guardian from selling property should be dismissed.
    Where incompetent has died, appeal from injunction restraining his guardian from selling property alleged to have belonged to incompetent should be dismissed, since guardianship has terminated, and with it guardian’s authority to sell property.
    4. Insane persons <&wkey;44 — Death of incompetent ward held to terminate guardianship and guardian’s authority to sell property.
    Death of incompetent ward terminated guardianship and guardian’s authority to sell his property under order of court.
    5. Insane persons <&wkey;44 — On death of incompetent ward, authority of guardian is limited' to making proper settlement in probate court and with legal representatives of ward.
    On death of incompetent ward, guardian’s authority is limited to making proper settlement in probate court and with legal representatives of ward, regardless of fact that order for sale of ward’s property, made before his death, had not been executed.
    Appeal from Burnet County Court; O. B. Zimmerman, Judge.
    Suit by S. B. O’Hair against J. H. H. Berry and John R. Brandon for an injunction. Defendant Brandon was dismissed from the suit, with his costs. Prom a judgment for plaintiff, defendants appeal.
    Appeal dismissed.
    Roy L. Walker and J. C. Abney, both of Lampasas, for appellants.
    W. H. Browning, of Lampasas, for ap-pellee.
   McCLENDON, C. J.

Appeal by J. H. H. Berry and John R. Brandon from a judgment of the county court of Burnet county, by which Berry was 'perpetually enjoined from selling, or in any way disturbing Mrs. O’Hair in the possession of, certain cattle. Brandon. was dismissed from the suit with his costs.

The litigation grew out of the following facts;

Mrs. S. B. O’Hair and her husband, Joe O’Hair resided in Burnet county. Joe O’Hair became non compos mentis while in Lampasas county, and Berry instituted in the county court of that county guardianship proceedings, and was appointed temporary guardian of his estate. At the next regular term of the court, Mrs. O’Hair contested the jurisdiction of the court on the ground that her husband resided in Burnet county. Subject to this plea, she asserted her right to be appointed guardian of her husband’s estate, should the court retain jurisdiction. This plea was overruled apparently on the ground that Joe O’Hair had in fact moved his residence to Lampasas county before he became non compos mentis, and Mrs. O’Hair was appointed permanent guardian of the estate. This order was made on June 4,1927. Berry appealed from it to the district court of Lam-pasas county, and that court sustained Mrs. O’Hair’s plea to the jurisdiction, and remanded the proceeding to the county court, with instructions that it be dismissed for want of jurisdiction.. Berry appealed to this court, and his appeal was dismissed upon agreed motion on the ground that, since filing the record, Joe O’Hair had died, and the questions involved had therefore become moot. On September 26, 1927, the county court of Lampasas entered an order authorizing Berry as guardian to sell the cattle at issue as the property of his ward, on the ground that it was perishable. Mrs. O’Hair brought this suit against Berry and Brandon to restrain the sale of the property under the order, alleging that she owned the property in her own right; that the appointment of Berry as guardian of her husband’s estate was void, because the county court of Lam-pasas county had no jurisdiction in the matter, and Berry was about to sell the property to Brandon. Brandon disclaimed any interest in the property. Mrs. O’Hair discontinued as to him, and he was dismissed with his costs. Berry disclaimed any interest in the property, and asked that the suit be dismissed as against him, on the ground that he was not sued in his representative capacity. The injunction was granted as above stated as to Berry, and he was taxed with the costs.

Mrs. O’Hair has filed a motion to dismiss the appeal on the ground that no judgment was rendered against the appellants, and there is nothing, therefore, for them to appeal from. In so far as Brandon is concerned, this contention is correct, but it is not correct as to Berry. It is true that Berry was not sued in his representative capacity, and the judgment is not determinative of the question of title as between Mrs. O’Hair and her husband. However, the ground on which the injunction was sought and granted was that Berry was attempting to assert an authority as guardian under a void order. If the order was not void, then no relief should have been granted to Mrs. O’Hair because she was not seeking to contest the title to the property as between herself and her husband or his legally appointed guardian. Therefore the validity, of the order was directly brought in question, and the effect of the judgment granting the injunction was to hold the order absolutely null and void. It can be supported on no other theory. The motion to dismiss on the grounds stated therein is therefore overruled.

It appears, however, from the agreed motion in the guardianship appeal that the questions involved have become moot, and for that reason the appeal should be dismissed. .Toe O’Hair having died, the guardianship, as such, has terminated, and with it the authority of the guardian to sell the property in controversy. The authority of such guardian is limited to the making of a proper settlement of his trust in the probate court and with the legal representatives of his late ward. Burr v. Wilson, 18 Tex. 367; American Surety Co. v. Hardwick (Tex. Civ. App.) 186 S. W. 804; Carpenter v. Soloman (Tex. App.) 14 S. W. 1074; State Fair Association v. Terry, 74 Ark. 149, 85 S. W. 87; 28 Corpus Juris, pp. 1096,1097, and authorities cited in notes 1, 6, 12, 13, and 21.

The appeal is dismissed.

Appeal dismissed.
      &wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: LEVY, J.

text:
    MERRILL v. LOUISIANA RY. & NAV. CO. OF TEXAS.
    (No. 3524.)
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1928.
    1. Appeal and error &wkey;?l 170(9) — In baggage-man’s action for injury, instruction charging jury to reduce damages, in event of contributory negligence, if error, held harmless, where verdict was for defendant (Court of Appeals Rule 62a).
    In action by baggageman for injury sustained while helping station agent load trunk into baggage car, instruction authorizing jury to reduce amount of damages in ease they should find baggageman was guilty of contributory negligence in relation to position in which he placed himself in handling trunk or in failing to have station agent scotch truck, if error, held harmless, where jury rendered verdict for defendant and against baggageman under Court of Appeals Rule 62a.
    2. Appeal and error <&wkey;l002 — Finding of jury made on conflicting evidence is controlling on appeal.
    Objection that finding of jury is against preponderance of evidence may not be sustained on appeal, where evidence is quite conflicting, since decision of jury is controlling.
    3. New trial <&wkey;l04(3) — In baggageman’s action for injuries received in loading trunk, new trial because of newly discovered evidence, consisting of passenger’s affidavit, held properly denied, evidence being cumulative.
    In baggageman’s action for injuries sustained while aiding station agent in loading trunk, motion for new trial on ground of newly discovered evidence, namely, an affidavit of passenger on train to effect that he saw station agent loading trunk into baggage car and that station agent either jumped or fell off of truck and dropped trunk, held, properly denied, such evidence being merely cumulative concerning size of trunk and station agent’s act in handling trunk.
    Appeal from District Court, Hunt County; Newman Phillips, Judge.
    Action by J. F. Merrill against the Louisiana Railway & Navigation Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    The action was by appellant for damages for alleged personal injury due to negligence of appellee’s local station agent. The appellant was the train baggageman of appellee, and he claims to have been seriously ruptured while assisting the local station agent in loading a passenger’s trunk into the baggage car of the train on July 12,1924, at Farmers-ville. The station agent placed a truck with the trunk loaded on it by the side of the car, which was used to transport both baggage and express. The station agent and the appellant then undertook to load the trunk into the car, the appellant pulling at one end and the station agent pushing from the other end of the truck, when the station agent suddenly released his hold of the trunk, due either to the sudden moving of the truck or to the manner in which he held the trunk. As claimed by appellant, under the circumstances the weight of the trunk and his effort to continue to hold the trunk to prevent its falling to the platform caused such a strain upon him as to produce serious abdominal hernia.
    The negligence alleged was: (1) The failure of the station agent to scotch the wheels of the truck to prevent it from rolling; and (2) the manner in which the station agent held and handled the trunk while attempting to load it into the baggage car. The appellee answered by general denial, and specially pleaded contributory negligence and assumed risk. Appellee further specially pleaded that the appellant was also distinctly and separately employed as express agent by the American Railway Express Oompany, and, at the time of his alleged injuries, he was performing services solely for the express company; that the trunk was shipped as express, and not as baggage; and that appellee was not liable for the injuries sued for. The case was tried before a jury, and they returned a verdict against the appellant. In keeping with the verdict judgment was entered for the appellee company.
    There is involved in the general verdict of the jury the findings of fact, viz.: (1) That the appellant received'no injury as claimed by him; and (2) that the trunk was shipped by, express and was not being transported as baggage under a ticket. The court’s charge specifically submitted these two issues to the jury. Either fact as so found would preclude a recovery by appellant. There was evidence to support both findings of fact. There is ample evidence to support the jury finding that the trunk was being shipped by express, and not as baggage. The appellant was also separately and distinctly employed as tlie express agent for tlie express company. The station agent was also so employed. There is evidence authorizing the finding of the jury that .the appellant was not injured on this occasion, even if the trunk was being handled as baggage. There is much evidence that the trunk was a comparatively light one, and that appellant suffered no strain sufficient to injure him, although he claimed that it did. There ' was further evidence going to show that ■the injury appellant complained of occurred on another and previous occasion.
    The points presented on appeal are: (1) The right ,to a new trial for newly discovered evidence; (2) errors in the charge; (3) the verdict is contrary to the evidence.
    H. L. Carpenter, of Greenville, for. appellant.
    Bruce M. McMahan, of Greenville, and Touchstone, Wight, Gorinley & Price, of Dallas, for appellee.
   LEVY, J.

(after stating the facts as above).

The court’s charge authorized the jury to reduce the amount of damages in case they should find the plaintiff was guilty of contributory negligence in relation to the position in which he placed himself in handling the trunk or in failing .to have the station agent scotch the wheels of the truck. The appellant, as grounds for error, claims that there was no evidence authorizing the submission of such matters to the jury. The jury rendered a verdict for defendant and against plaintiff for any recovery of damages. There was no reduction of damages. So that in no event, it is believed, would the charge complained of, if error, warrant a reversal, for it could not be held harmful. Rule 62a. The charge did not bring about the verdict against the plaintiff or any recovery of damages.

The court’s charge authorized a verdict in favor of the defendant in case the jury should find that the plaintiff’s injuries were the result of a risk ordinarily incident to the work in which the plaintiff was engaged, and was not proximately caused by the negr ligence of the defendant’s agent, Head. The objection to the charge is that there was no evidence to warrant it. It was pleaded as a defense, and there is evidence sufficient to raise the issue, considering all the circumstances shown.

The objection that the findings of the jury are against the preponderance of the evidence may not be sustained. The evidence is quite conflicting, and the decision of the jury would be controlling.

The motion for new trial set up as a ground newly discovered evidence. The affidavit of the purported witness was attached, reciting to the effect that he was riding on the train at the time of the alleged occurrence and saw the appellant and the station agent loading a large .trunk into the baggage car from the truck beside the car, and that the station agent “either jumped or fell off the truck and dropped the trunk.” He further testified that he “did not see Mr. Merrill any more, and did not know that he was hurt or claimed to be hurt” until some days afterward, “when I heard some railroad men talking about Mr. Merrill claiming to have been hurt handling a trunk at Earmersville.” The evidence was merely cumulative concerning the size of the trunk and the station agent’s act in handling the trunk. I.t throws but little additional light upon whether or not the trunk did cause injury to plaintiff as he claimed it did, and upon whether or not the trunk was express or baggage. The verdict of the jury was evidently founded / upon the ample evidence showing that the trunk was express, and not baggage. It is believed that the trial court did not err in overruling the mo.tion.

The judgment is affirmed..
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author: WALTHALL, J.

text:
    CHANDLER et ux. v. WIEMERS.
    (No. 2120.)
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1928.
    Rehearing Denied April 5, 1928.
    1. Appeal and error <&wkey;544(l)—In absence of bill of exception, appellate court will not pass on argument and remarks of counsel as constituting reversible error.
    In absence of bill of exception, appellate court will not pass on argument and remarks of counsel in opening and closing case as constituting reversible error.
    2. Trial <&wkey;118—Counsel, in arguing case, should accept law as given in court’s charge as law of case.
    Counsel,, in arguing case to jury, should accept law as given in court’s charge as law of case.
    3l Appeal and error <&wkey;978(3)—Trial judge’s discretion in refusing new trial for jury’s misconduct is subject to review on appeal (Rev. St. 1925, art. 2234).
    Discretion of trial judge in refusing new trial for misconduct of jury while deliberating on their verdict, under Rev. St. 1925, art. 2234, is subject to review on appeal.
    4. New trial &wkey;>143(l)—Juror cannot be heard to impeach verdict by affidavit or otherwise.
    A juror cannot be heárd to impeach his verdict by affidavit or otherwise.
    Appeal from District Court, Atascosa County; W. O. Murray, Jr., Judge.
    Application by Garland Owens for probate of the last will and testament of Johanna Wiemers, deceased, contested by Cbris B. Wie-mers, temporary guardian of Christof T. Wiemers, surviving husband of Johanna Wiemers, and a person of unsound mind, in which C. M. Chandler and Lillie Ann Chandler intervened. Prom a judgment refusing the probate of the will, intervening proponents appeal.
    Affirmed.
    Garnand & Barrow, of Jourdanton, and Clamp & Searcy, of San Antonio, for appellants.
    R. R. Smith, L. Morgan Williams, and C. S. Slatton, all of Jourdanton, for appellee.
   WALTHALL, J.

This suit presents a contest against the probate of what purports to be the last will and testament of Johanna Wie-.mers, deceased.

In the county court, of Atascosa county, sitting in probate, on October I, 1926, an application for the probate of the last will and testament of Johanna Wiemers, deceased, was filed by Garland Owens, named in the will as independent executor. On February 25, 1927, pending the application to probate said will, Garland Owens filed his disinclination to act as such executor, and on the same day C. M. Chandler and Lillie Ann Chandler, principal legatees in said will, intervened in said proceedings.

In the county court the probate of said will was contested by Chris B. Wiemers, temporary guardian of Christof T. Wiemers, surviving husband of Johanna Wiemers, and a person of unsound mind.

A trial in the probate court resulted in a judgment denying the probate of said will, from which judgment intervening proponents duly prosecuted an appeal to the district court of said county.

In the district court contestant filed an amended answer, alleging, in substance, that his ward, Christof T. Wiemers, was a person of unsound mind; that he was the surviving husband of Johanna Wiemers, deceased, and that no child or children were born to them; that he was the only heir at law of Johanna Wiemers; that Johanna Wiemers was not possessed of sufficient mental capacity to make a will or to realize the nature of her testamentary act or to consider the rights and claims of those dependent on her bounty; that she was' old, decrepit, and infirm in body and mind, weak and childish, and that C. M. Chandler and his wife, Lillie Ann Chandler, intervening proponents, together with Garland Owens, conspired to cause the execution of said will, and thereby acquired her property; that said will was the result of fraud and undue influence practiced on deceased, and was not the free act of her will.

Proponents replied by general denial.

In the district court the case was tried de novo and submitted to a jury upon special issues, to which the jury found:

(1)Johanna Wiemers did not execute the instrument offered for probate in this case as her last will and testament.

(2) On September 17, 1926 (date of the instrument), Johanna Wiemers did not have sufficient mental capacity to make a valid will.

(3) The execution of the instrument offered • for probate as the last will and testament of Johanna Wiemers was the result of undue influence brought to bear on her by Garland Owens, C. M. Chandler, and Lillie Ann Chandler, or some one of them.

(4) The execution of the instrument offered for probate as the last will and testament of Johanna Wiemers was not the result of fraud practiced upon her by Garland Owens, C. M. Chandler, and Lillie Ann Chandler, or any of them.

On the verdict as returned, judgment was entered refusing the probate of said will.

Proponents, C. M. Chandler and Lillie Ann Chandler, prosecute this appeal.

Opinion.

Appellants present three propositions as grounds for a reversal and new trial.

The first complains ■ of improper argument and remarks of counsel, both in the opening and closing of the case before the jury. In the absence of a bill of exception, we will not pass upon the argument and remarks as constituting reversible error. We might say, however, in passing, that counsel in arguing the case to the jury ought to accept the law as given in the court’s charge as the law of the case. Any other rule would be confusing to the jury, and likely result in a mistrial.

The remaining propositions complain of the overruling of appellants’ motion for a new trial, charging misconduct of the jury in the trial of the case, as shown in the bill of exception.

The bill of exception approved by the trial court shows that on the hearing of the motion for new trial eleven of the jurors who served as such on the trial of the case were present before the court, sworn, and put under the rule. Juror W. G. Oook was the only one who testified on the hearing of the motion. When Oook had testified, both sides to the controversy rested, and the court overruled the motion. The only question presented here under the two propositions is to the action of the court in the ruling upon the motion for new trial.

Under the direction of the trial court, the evidence of the juror Cook is in the bill of exceptions, in form of questions and answers, and covers several pages of the transcript. We will abbreviate as much as may be done, combining questions and answers, and will state only what seems to be of material value. It is substantially as follows: R. M. Busby was a juror who sat in the trial of ,the case. Busby said:

“There had been a new law, late law, enacted where the husband or wife, either one, was confined to the insane asylum, that it gaye the other one a right to dispose of the property any way that he or she seen fit to do so.”

To the question as to how the witness applied the statement to the case, witness said: “Well, I taken it for granted that Mr. Busby was a fair-minded man; that he knew that was the law, and, if that was the law, why, I wasn’t willing to render a verdict that would give Mr. Chandler all that property said the jury had not agreed on a verdict at that time. Before Mr. Busby made that statement, “According to my best judgment -of the evidence given in the case, I believe she (testatrix) was sane,” juror said he believed testatrix executed the will; that, prior to the argument of jur'or Busby, on the special issue No. 2: “Did Mrs. Johanna Wiemers, on September 17, 1926, have sufficient mental capacity to make a valid will?” juror said: “Well, from the evidence given in the case, I believe, that Mrs. Wiemers was of a mind — had sufficient mind to make a will.” After some questions and answers as to how the witness juror stood on the third special issue, undue influence, prior to .the above statement of juror Busby, and the juror’s understanding as to the meaning of undue influence to the question: “What was your conclusion as to undue influence in the case, from the evidence in the case?” the juror answered: “From the evidence given in the case, my opinion was it wasn’t any undue influence. Question: Now, did Mr. Bushy’s statement have any influence on you in answering .this question? Answer: Well, it did to some extent. Question: Did you hear any argument in the jury room about, or any statement to .the effect that the Chandlers would have a chance to come in for one-half of it anyway? Answer: Yes, sir; Mr. McAllister made the statement, it didn’t make any difference how we would answer these questions given by the judge; it wouldn’t have anything to do with the property hereafter; that Mr. Chandler or his attorney should enter suit for the property.” The juror said that statement was made before a verdict was reached, and that it influenced him in rendering a verdict like he did, “to some extent it did. Question: Would you have agreed on the verdict that you did agree to, if you hadn’t believed these statements?” • to which the juror answered: “I don’t believe I would.” Other similar questions to the juror Cook elicited similar answers, on cross and redirect examination, which we need not state, the juror stating, in answer to questions, that he “was influenced by this new law,” and that “I thought I was rendering- a just verdict,” and that “I didn’t render a verdict according to ,the way I understood the evidence at first, because I was influenced by this new law that Mr. Busby brought in.”

It might be added that what purports to ■be the last will of Mrs. Johanna Wiemers was executed on September 17, 1926, and, after providing for .the payment of her debts and funeral expenses, testatrix by the instrument gives to four people named $200 each to be paid in cash, and the rest of the estate she leaves to C. M. Chandler and wife, Lillie Ann Chandler. The will appoints Garland Owens independent executor of the will, without bond, and directs that no action be had in the court with reference to the estate other than the probating of the will and filing an inventory and appraisement of the estate.

Article 2234, R. C. S. 1925, provides that, where the ground of the motion for a new trial is misconduct of the jury, the court shall hear evidence thereof, and may grant a new trial, if such misconduct proved lie material.

The discretion of the trial judge in refusing a new trial for misconduct of the jury while deliberating on their verdict is subject to review on appeal.

We are not prepared to say that the conduct of the jury, as detailed by the juror Cook, was not improper conduct. The jury, as stated by Cook, agreed to a false verdict, in that they agreed to a verdict which they believed to be contrary to the true facts. The testimony of the juror Cook simply impeaches the verity of the verdict which all of the jury, including the juror Cook, agreed .to return, and did return. Some of our Courts of Civil Appeals have held that such conduct on the part of the jury is not statutory misconduct, but impeachment. This court so held in Moore v. Orgain (Tex. Civ. App.) 291 S. W. 583 (writ refused). See, also, Twickell v. Klinke (Tex. Civ. App.) 272 S. W. 283; Heard v. Heard (Tex. Civ. App.) 272 S. W. 501. The statute does not define nor state the fact or facts which constitute statutory misconduct as used in the above article. However, that may be, as said by Judge Higgins in Moore v. Orgain, supra, speaking for this court, from an early date it has been the established rule in this state that a juror cannot be heard to impeach his verdict by affidavit or otherwise, and referred to a list of eases so holding.

Also, in Caylat v. Houston E. & W. T. Ry. Co., 113 Tex. 13, 252 S. W. 478, there is reported a clear and comprehensive opinion by Judge McClendon speaking for the Commission of Appeals, Section B, in which a large number of cases in the state and elsewhere, both state and federal, are reviewed. Without reviewing the case, it is there held that, except as modified by our statute on the subject (Rev. C. S. 1925, art. 2234), evidence was not receivable to impeach the verdict of the jury on the ground of misconduct of the jury in arriving at their decision. In Bradley v. Texas & Pacific Ry. Co. (Tex. Com. App.) 1 S. W. (2d) 861, is found tlie most recent discussion of the question involved here, and an application of article 2234, Rev. St. .1925, and cases cited. The opinion cites with approval Texas Employers’ Insurance Ass’n v. Eubanks, 294 S. W. 905, by the Amarillo Court of Civil Appeals, in which it is said that a juror cannot impeach his verdict, and that illogical reasons therefor are not misconduct, and that the views and notions .that jurors may entertain, individually or collectively, of the law, cannot affect their verdict.

Eor reasons stated, the ease is affirmed.
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author: WILLSON C. J.

text:
    WILLIS et ux. v. MARTIN et al.
    (No. 3522.)
    Court of Civil Appeals of Texas. Texarkana.
    March 15, 1928.
    1. Publio lands <&wkey;I78(l)— Judgment foreclosing vendor’s lien retained by one granting land belonging to state held erroneous since he could not create lien.
    Where conveyance was made of land owned by state by one who took notes from grantee secured by vendor’s lien, and after assignment of notes judgment in favor of assignee foreclosing vendor’s lien was rendered, held that judgment was erroneous, since land belonged to state at time and such grantor could not create lien against it.
    2. Vendor and purchaser <&wkey;189 — Grantee held not estopped to deny grantor’s title, where after purchasing from grantor he purchased from state, which owned land (Vernon’s Sayles’-Ann. Civ. St. 1914, art. 5432).
    Where grantee received grant of land which belonged to state and gave notes in payment, but subsequently purchased land from state under provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5432, held that grantee was not estopped to deny grantor’s title.
    3. Limitation of actions <&wkey;48(I) — Four-year statute held applicable in assignee’s suit on notes received for land - belonging to state which assignor sold, there being no vendor’s lien (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5688, 5694).
    Where assignee took notes given in payment for land sold by assignor, which in fact belonged to state, and more than four years had elapsed between maturity of notes and suit thereon, held that Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5688, barring right to sue in four years, was applicable, since, under circumstances, vendor’s lien was not created, placing action under provisions of article 5694.
    Appeal from District Court, Cherokee County; C. A. Hodges, Judge.
    Suit by George Willis and wife against E.- C. Martin and others. From the judgment, plaintiffs appeal.
    Reformed and affirmed.
    By an instrument dated March 1, 1920, Barney Deekard and his wife undertook to convey to plaintiff in error George Willis all their “equity interest” in and to 25 acres of land described as the part of the Goss survey conveyed to them January 21, 1911, by one A. W. Duke. According to recitals in the instrument, the consideration for the conveyance to said Willis was $400 paid by him and his four promissory notes, three for $300, interest, and attorney’s fees, each, and the other one for $200, interest, and attorney’s fees, payable January 1,1921,1922, 1923, and 1924, respectively, all purporting to be secured by a vendor’s lien retained by the Deckards on the land. The instrument contained a covenant of general warranty, and a recital as follows:
    “The intention of this conveyance, is to sell to George Willis all improvements on said land, and the said George Willis is to deduct the cost of the purchase of said land from the state of Texas, including patent fee and all expenses pertaining to securing same.”
    As a matter of fact the land never -belonged to Duke, who undertook to convey it to the Deckards, and never belonged to the Deckards, who conveyed to said Willis, but at the time of the transactions Ispecsified was vacant land and belonged to the state of Texas. After said March 1, 1920 (the date of the instrument above referred to), said Willis purchased the land of the state (under the provisions of article 5432, Vernon’s Statutes, it seems), and same was patented to him by a patent issued June 10,1920, recorded June 21, 1920, in Cherokee county, where the land was situated. By an instrument dated October 18,1920, Barney Deekard sold and conveyed the three notes for $300 each, made to him by said Willis, to defendant in error George Huston, together with such interest as he had in the land. By a ' suit commenced November 30, 1925, said Barney Deekard sought a recovery against said Willis for the amount of the $200 note, and a foreclosure of the vendor’s lien retained to secure the payment of that note as well as the three notes for $300 each transferred to said Huston as stated. December 15,1925, judgment was rendered in that suit in favor of Deekard for $225, in favor of Huston for $845, and foreclosing the vendor’s lien retained by the Deckards to secure the payment of the notes. Later an order of sale was issued on said judgment and placed in the hands of E. C. Martin, sheriff of Cherokee county, for execution. This suit, commenced April 6, 1926, by said George Willis and wife, Florence Willis, the other plaintiff in error, as plaintiffs, against E. C. Martin as sheriff of Cherokee county, Barney Deekard, 'and( defendant in error George Huston as defendants, was to enjoin the execution of the order of sale above referred to, to recover the 25 acres of land, and to quiet the title of plaintiffs in error, thereto by canceling tbe vendor’s lien notes made by said George Willis to Barney Deckard, and tbe judgment rendered December 15, 1925, as aforesaid. Tbe trial (to tbe court without- a jury) resulted in a judgment setting aside said judgment of December 15, 1925, and perpetually enjoining further proceedings thereunder, canceling .the note for $200 held by Barney Deckard and tbe vendor’s lien asserted, so far as it was to secure same, in favor of E. O. Martin, sheriff, for costs, and in favor of said Huston on bis cross-action against said George Willis for $695 (as the amount unpaid of the three notes for $300 each transferred to said Huston by Barney Deckard), and foreclosing the vendor’s lien claimed to secure the notes as against said Barney Deckard, George Willis, and Florence Willis. The appeal is by said George Willis and Florence Willis, and they alone complain of the judgment.
    Guinn & Guinn, of Rusk, for appellants.
    Perkins & Perkins, .of Rusk, for appellees.
   WILLSON C. J.

(after stating the facts as above). [1] We think the judgment is erroneous so far as it is in Huston’s favor for a foreclosure of the vendor’s lien the Deckards attempted to retain on the land when they sold it to George Willis; for the land belonged to the state at that time, and the Deckards could not create a lien against it. Palmer v. Chandler, 47 Tex. 332.

In the case cited it appeared Palmer settled upon and improved public land, and before he had occupied same for the length of time required by the statute sold it to Chandler. It was held that Palmer was not entitled to assert a vendor’s lien against the land as security for a promissory note representing a part of the purchase price Chandler agreed to pay. In so holding the Supreme Court, in the opinion by Judge Moore, quoted approvingly by Judge Stay ton in Houston v. Dickson, 66 Tex. 79, 1 S. W. 375, said:

“If the vendor has no valid right to or interest in the land which will pass to or vest in the vendee, he cannot claim a vendor’s lien to secure notes given in payment for it,”

The ruling was followed in Williams v. Finley, 99 Tex. 473, 90 S. W. 1087, where it appeared Finley sold a 2-aere tract he owned' and a 300-acre tract he did not own, but which belonged to the state, to Armstrong, who sold, same to Williams, who afterwards purchased the 300-aere tract of the state, and where it appeared, further, that the purchase price Armstrong was to pay Finley for the 2 acres of land was represented by promissory notes made by Armstrong, which Williams agreed to pay. It was held that Finley was not entitled to have a vendor’s lien retained by him on the two tracts to secure the payment of the notes foreclosed on the 300-acre tract.

The trial court found .that when the state patented the land to George Willis June 10, 1920, he and Florence Willis, his wife, had possession thereof and were occupying and using same as their homestead, and ever thereafter continued to so occupy and use it, and found, further, that when he purchased the three notes for $300 each of Barney Deckard, Huston knew the land belonged to the state and not to Deckard at the time the latter attempted to create a vendor’s lien thereon to secure the payment of the notes. The conclusion of the trial court that Huston nevertheless was entitled to have the lien he claimed foreclosed was on the theory, it seems, that said George Willis and his wife were in the attitude of claiming title to the land under the conveyance to them from the Deckards and therefore were estopped from asserting the Deckards did not have the title to the land. “I conclude,” said the court, “that George Willis was estopped by the deed under which he held to set up want of title in his vendor.” The general rule is that a vendee is not estopped to deny his vendor’s title. 21 O. J. 1069, and eases there cited; 10 R. C. L. 682, and cases there cited; Collins v. Box, 40 Tex. 190; Robertson v. Pickrell, 109 U. S. 608, 3 S. Ct. 407, 27 L. Ed. 1049; Bybee v. Railway Co., 139 U. S. 663, 11 S. Ct. 641, 35 L. Ed. 305. There is nothing in the facts of this case which makes the general rule inapplicable, and we think the conclusion of the trial court to the contrary was erroneous.

One of the three notes' transferred to Huston matured January 1,1921, and another January 1, 1922. Huston’s cross-action in which he sought a recovery on the notes was not commenced until December 17, 1926, which was more than four years after the maturity of .the two notes specified. Willis .and his wife in their pleadings having set up the statute of limitations of four years (article 5688, Vernon’s Statutes) in bar of the right claimed by Huston .to a recovery on the notes, the trial court erred when he held that Huston nevertheless was entitled to recover on the two notes specified. Evidently that court’s action was based on his finding that the notes were secured by a vendor’s lien on the land, and that Huston’s rights therefore were determinable by article 5694,' Vernon’s Statutes, as construed by the Commission of Appeals in Bank v. Graham, 275 S. W. 997. But, as we have held, the notes were not so secured, and therefore said article 5688, and not article 5694, was the statute applicable to the case.

The other one of the three notes transferred to Huston matured January 1,1923, less than four years before Huston’s suit thereon was commenced. But it appears from the note ■copied in the statement of facts sent to this court, and the credits indorsed thereon, that i,t was paid in full October 18, 1920, which, as we lave seen, was long before Huston by his cross-action sought a recovery thereon.

The judgment will be so reformed as to deny Huston a recovery of anything against Willis and his wife, and as so reformed will be affirmed. The costs of the appeal will be adjudged agains.t appellee Huston.
      ®=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    FERGUSON v. WASHBURN et al.
    (No. 9099.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 2, 1928.
    Rehearing Denied March 22, 1928.
    1. Limitation of actions &wkey;>30 — Two-year iim-. itation statute held applicable to cause of action for conspiracy in defeating plaintiff for renomination and re-election to office (Rev. St. 1925, art. 5526, subds. I and 6; art. 5524).
    Statute of limitation provided by Rev. St. 1925, art. 5526, either subdivision 1 or 6, and not article 5524, held applicable to cause of action for defendants’ having conspired to, defeat plaintiff for renomination and re-election to public office, where plaintiff expressly disclaimed that action was founded on libel, slander or malicious prosecution, but alleged that it was founded on his being deprived of salary of office for two years for which he would have been elected, and for expenses he was forced to incur in defending himself against defendants’ actions.
    2. Appeal and error &wkey;>742 (2) — Objections to appellant’s propositions submitted as being applicable to enumerated group of error assignments, wljere assignments severally dealt with as many distinct matters as there were numbers of them, was sustained on appeal (Court of Civil Appeals Rule 30).
    Objections to consideration of appellant’s propositions upon the ground that each was submitted as being applicable to enumerated group of assignments of error, when in fact the assignments so put together severally dealt with as many separate and distinct matters as there were numbers of them, was, under Court of Civil Appeals Rule 30, sustained by such court on appeal.
    3. Appeal and error &wkey;>737 — Where assignment complained singly of court’s sustaining special exceptions I, 2, etc., to petition, finding any exception good required finding against assignment.
    Where an assignment of error complained singly of court’s having sustained special exceptions 1, 2, 5, etc., enumerating them, to the petition, court’s finding that any of the exceptions was good required its finding against the assignment.
    4. Pleading <&wkey;8(2l0) — Petition’s allegations defendants’ acts caused plaintiff to pay attorneys’ fees held subject to exception, where not specifying acts.
    In suit for damages for conspiracy, which plaintiff alleged resulted in his defeat for renomination and re-election to public office, allegations of petition that defendants’ acts caused plaintiff to pay out attorneys’ fees held subject to exception, where not specifying defendants’ acts which made necessary the payment of such fees.
    5. Pleading &wkey;>l8 — In damage suit for conspiracy to defeat plaintiff for office, blanket allegations that defendants made damaging statements held subject to exception as indefinite.
    In suit for damages for conspiracy to defeat plaintiff for renomination and re-election to public office, a blanket allegation in petition that defendants had made damaging statements, without such allegations specifying by whom, when, and where such statements were made, held subject to exception as being indefinite.
    6. Conspiracy <&wkey;>l9 — Plaintiff alleging monetary damages from conspiracy to preclude election to office had burden of proof.
    Plaintiff alleging monetary damages from defendants’ conspiracy to preclude his renomination and re-election to public office had burden of proof.
    7. Conspiracy t&wkey;20 — Loss of election to office held too remote and speculative to permit recovery of damages for loss of emoluments.
    In suit for damages, alleging defendants’ conspiracy resulting in plaintiff’s defeat for renomination and re-election to public office, held that election to office and consequent damages were too remote and speculative to authorize court’s granting, as damages, the emoluments of the office.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by C. Bruce Ferguson against H. L. Washburn and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    R. L. Henry, of Houston, for appellant. Baker, Botts, Parker & Garwood, of Houston, for appellees Washburn and others.
    Fulbright, Crooker & Freeman, of Houston, for appellees Lilley and others.
   GRAVES, J.

In this action, under express disclaimer that it was in any respect founded upon libel, slander, or malicious prosecution, appellant sought $50,000 actual, special damages of the appellees, $40,000 of it for causing his defeat for re-election to the office of tax collector of Harris County for 1925-26, thereby depriving him of its revenues of $20,-000 for each year, and the remaining $10,000 for forcing him to incur in defending himself against their actions certain, items of expense for attorney’s fees, clerical hire, office expense, printing, etc.; his brief in this court thus in substance, epitomizing the grounds upon which his cause of action was based:

“Appellant set forth that all the appellees sought to injure him in his official capacity as tax collector of Harris county, Tex., and as a candidate for re-election and in his individual capacity, by entering into a conspiracy and acting jointly and severally against him for the purposes above specified.
“Appellant did not bring this suit as an action based upon libel or slander or malicious prosecution, but upon the basis of facts as set forth in his third amended original petition, charging and showing that his fundamental rights as a citizen had been violated and interfered with and that he had been thus injured in a pecuniary way, his-reputation had been injured, and his business as a private citizen and as an official had been injured and destroyed. * * *
“Appellant claimed that by the conspiracy and the joint and several actions of appellees he was defeated for renomination and re-election as tax collector of Harris county, Tex., and was forced to incur certain items of expense, which he set forth as special damages.”

The appellees, in different groups, filed answers, severally presenting among their defenses, according as appropriate to their different attitudes, demurrers, and denials, special exceptions, pleas of limitation, absence of malice or ill will, good faith, and of privileged matter.

The trial court heard the cause upon the general demurrer and special exceptions to the trial, petition, overruling the former, but sustaining a number of the latter, and, upon the appellant’s refusal to further amend, dismissing his suit in its entirety; so that the appeal comes here upon a challenge of that adverse action.

One of the special exceptions sustained was that of the appellees Houston and Lil-ley, who were made parties to the suit more than two years after all the complained-of acts were alleged to have occurred, interposing the 2-year statute of limitation (R. S. art. 5526) in bar of the action as against them.

Under appellant’s above-quoted statement of the character of his suit, this action was clearly correct, the 2-year statute of limitation applying to it rather than the four-year one, as he contends; having himself expressly taken his cause of action out of the purview of the one-year period applying to actions for malicious prosecution, libel, or slander (R. S. art. 5524), he plainly left it as one either “of trespass for injury done to the estate or the property of another,” or as one “for injury done to the person of another,” hence necessarily falling within article 5526 and under subdivisions 1 or 6 thereof, according to whether it be regarded as for injury to his property or his person, since it must be one or the other (Cyc. vol. 58, p. 994; Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex. 298; Railway Oo. v. McAnulty, 7 Tex. Civ. App. 321, 26 S. W. 414; Davies v. Railway Co., 62 Tex. Civ. App. 599, 133 S. W. 297).

The leading case cited by appellant in his contention for the application of the four-year statute (Brown v. Mortgage Co., 97 Tex. 599, 80 S. W. 987, 67 L. R. A. 195), which will be discussed in other respects, infra, does not hold otherwise, but simply that the one-year limitation for libel or slander suits did not apply, because the plaintiff in that action did not seek that sort of recovery, the two-year statute not being involved at all.

Objection is made by the appellees to the consideration of appellant’s^ propositions 1 and 2, upon the ground that each is submitted as being applicable to an enumerated group of assignments of error, when in fact the assignments so put together severally deal with as many separate and distinct matters as there are numbers of them, therefore in neither instance furnishing the source of a common point or proposition of law—that is, one germane to them all.

The record verifies as a fact the statement thus made in the objection; it is therefore well taken, and must be sustained. Rule 30 for Courts of Civil Appeals. If they were considered, however, neither of these • propositions could be approved. The first of them, No. 1, complains singly of the court’s sustaining appellees’ special exceptions 1, 2, 5, 7, 8, and 9 to appellant’s trial petition, all of which called for more detail and particularity in the cause of action therein declared upon, and in like manner affirms that the pleading was not obnoxious to any of the objections so interposed against it; if, therefore, any one of the exceptions was good, the proposition would fail. Railway Co. v. Biggs (Tex. Civ. App.) 283 S. W. at page 628(5), column 1.

That several of them were well taken, we have no doubt, indeed, we are not prepared to say that any of them were not, but, as the petition is very long, as well as somewhat involved, it is deemed unnecessary to here test it as against all these specified exceptions, but only as to enough of them to indicate the correctness of the trial court’s ruling. For example: (1) The fifth exception was addressed to the sixth paragraph of the pleading ; that paragraph alleges in general terms that, by reason of the wrongful acts, malicious conduct, and false statements to his bondsmen and others of each and all of the appellees, especially of Houstoun, acting both severally and together in confederation and conspiracy against him, he was compelled to pay two law firms the sum of $1,000 each, and a Mr. Heiser $250; that the $1,000 to the first law firm was paid to them as attorneys for his bondsmen on the insistence of Houstoun' that the contract for making his official bond so provided, and that the $250 to Heiser was paid for certain work Houstoun insisted must then be done under his direction in the county tax collector’s office; that the other $1,000 was paid for legal services in the effort to defend himself against the attacks thus made upon him by the appellees, etc.

The fifth special exception challenged the legal sufficiency of these averments to authorize appellant to recover the stated sums from the appellees, in that they fail to show in what way and for what particular service the alleged false statements and wrongful conduct upon their part made it necessary for him to pay out attorney’s fees, as well as employ a supervising clerk; it seems to us, they are insufficient. For aught that appears in them, the payments and employment may have been not only entirely voluntary but improvident as well; certainly no proximately causal connection is shown between them and the wrongs' alleged, and without it no recovery of them as damages could be had.

2. Likewise the fifth paragraph of the petition, among many others, some of which are set out at great length, makes one blanket charge that the defendants, without in that connection naming them individually at all, “did at various and sundry times, during the .political campaign of 1924, wherein plaintiff was seeking re-election to the office of tax collector of Harris county, Tex., maliciously state to various and sundry people in and about the city of Houston and in other places in Harris county, Tex., that”—following with a sort of a salmagundi of alleged statements, charged to have been made at different dates, in different places, and by different ones of the appellees. The second special exception, leveled at this, asked that the pleader be required to further state: (a) Which of the defendants made these statements; (b) when, where, and to whom they were made; and (c) the exact language of the statements complained of, not mere general allegations as to the character and effect thereof. These particulars, as referable to each charge made, those accused were entitled to, and the learned trial judge did not err in so holding. Vacicek v. Trojack (Tex. Oiv. App.) 226 S. W. 505.

As before indicated, it is the same with other sections of the pleading, the exceptions in different instances being sustained to only such portions of the long averments as lacked the specification and particularity to which the appellees were entitled before being required to respond to actual monetary damages, which must always be specifically alleged and proven. The subject will not be further pursued.

The other of appellant’s propositions, No. 2, apparently advances to the heart of the case declared upon in its affirmation that his petition, “after having alleged that appel-lees’ actions caused him to lose a renomination and- re-election to that office, as well as to incur certain unnecessary expenses incidental to defending himself in his official position, states a combination of facts warranting appellant in his right to recover damages, and entitles him to a recovery as an element of damages in the loss of the office of tax collector of Harris county, Tex., and in being deprived of re-election.”

As our preliminary statement has recited, the only damages sought were the actual special ones flowing from the loss of re-election to the office of tax collector for an additional term beyond his then incumbency, the amount of which was laid at $40,000 and the expenses he had been compelled to pay as a result of appellees’ alleged wrongful acts, placed at $10,000 more; there is no count either for punitory damages, or for ouster from the office he actually held at the time for the balance of his unexpired term.

So that, upon this feature, there is only involved a claim for loss of the emoluments of the office of tax collector of Harris county for a two-year term to which he was neither nominated nor elected, his only alleged relation to it having been that he was an unsuccessful candidate for renomination to it in the July primary election of 1924. Were the merits of such claim so presented here as to require consideration of it, this court would be unwilling to hold such damages recoverable, being of opinion that the loss of the office, and of its revenues, could neither be said to be the natural, immediate, and legal consequence of the charges made, nor due exclusively to them, but would be top remote and speculative; Reeves v. Maynard, 32 Ga. App. 380,123 S. E. 181; Taylor v. Mosely, 170 Ky. 592,186 S. W. 634, Ann. Cas. 1918B, 1125; Field v. Colson, 93 Ky. 349, 20 S. W. 264.

Appellant has cited no case holding that special damages for the loss of an office in such circumstances could be recovered, nor does this court independently know of one; we are unable to agree with his able counsel that either Johnson v. Galveston Tribune (Tex. Civ. App.) 141 S. W. 304, or Brown v. Mortgage Co., 97 Tex. 599, 80 S. W. 985, 67 L. R. A. 195, supra, supports any such recovery.

As the appellees’ brief here.states:

“No such issue was involved in the Johnson Case; he pleaded damages to his political career and to his opportunities to secure public office but did not seek to recover the value ol the office for which he was-a candidate.”

Likewise the Brown Case, is far afield, there being no public office, nor candidacy for one, there involved at all; the holding there is correctly reflected in syllabus 1, as follows:

“A petition, alleging that defendants conspired together to ruin plaintiffs in their business as real. estate loan agents, and for that purpose circulated false statements that plaintiffs were bankrupt, were unable to obtain money to loan, and that the business of certain companies engaged in loaning money had been taken from, plaintiffs'because of fraudulent conduct as such agents, and that in consequence of such representations plaintiffs’ business had been destroyed, stated a cause of action.”

The statements and representations there involved had to do with and were alleged to have injuriously affected an established, going business as loan agents, one in esse, which the court refers to as “the business of which the plaintiffs by their energy and care had built up for themselves”; the destruction of an actual, tangible business of that character is a very different thing.from the mere contribution to the defeat of one’s candidacy for nomination to a public office, to which, in the contingencies and uncertainties affecting such matters, he might never have been elected anyway.

While further propositions are presented, separate discussion of them is deemed unnecessary, since the conclusions stated determine the merits of the appeal.

The trial court’s judgment has been affirmed.

Affirmed.
      ®=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes