text:
    STOKES v. STATE.
    No. 13708.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1931.
    Rehearing Denied Feb. 25, 1931.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   MORROW, P. J.

Tbe unlawful sale of intoxicating liquor is the offense; penalty, confinement in tbe penitentiary for a period .of two years.

A peace officer marked a $1 bill, and gave it to Mart Holman, with tbe instruction that it be used in tbe purchase of whisky at tbe 'appellant’s place of business. The officer stood at a distance of about a block while Mart Holman went to the appellant’s place of business. Mart Holman testified that she purchased from tbe appellant a pint of whis-ky, paying him therefor with tbe $1 bill and a 50 cent piece wbicb the officer bad given her. Upon tbe trial, she identified tbe appellant as the person who bad sold her tbe whisky and to whom she bad delivered tbe money. She also identified tbe place of business of the appellant as the place where tbe transaction took place. She said that there was a woman present whom she presumed to be the appellant’s wife, though she did not know.

Immediately upon learning of the sale, the officer procured a warrant for the arrest of the appellant, and arrested him at his place. No search appears to have been made at that time. As 'soon as the officer had placed the accused in jail, a search warrant was procured and he proceeded to search the business house of- the appellant where the sale was alleged to have taken place. It is the 'right <of an officer making a legal arrest to search the place at which the arrest is made. Upon such search, the fruits of the crime and the things used in carrying out the criminal enterprise may be seized. See Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. The right to seize marked money connected with the criminal act or intent is illustrated by analogy in many cases, and in some by specific identity. See State v. Lyon, 176 Iowa, 171, 157 N. W. 742; Furlong v. United States (C. C. A.) 10 F.(2d) 492, in which the property seized was a marked $1 bill received in payment of whisky sold. In the cases mentioned, the seizure of the money was in a search without warrant coincident with, or intimately connected with, the arrest. The seizure was not under a warrant, but upon the principle that without a warrant the seizure would be made incident to a legal arrest. No precedents have been discovered indicating that the right to search the prenpses in which the crime was committed would cease with the arrest. There are cases holding that, after the arrest of one accused of crime and his incarceration, a search of the premises without warrant would be illegal. Touching the soundness of which holding we express no opinion. Tlie oases mentioned indicate tliat the contrary -would be the rule if the premises were entered subsequent to the arrest under a valid search warrant. The Oklahoma, case of Thomas v. State, 27 Okl. Cr. 264, 226 P. 600, due to the similarity of the facts, has specific bearing 'upon the announcement last above made, and the existence of the principle, as well as its application, is deemed supported by many authorities, to some of which reference is made in the following digest: Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231, with citation in the notes including marked money, Thomas v. State, 27 Okl. Cr. 264, 226 P. 600; liquor bottles, etc., United States v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416; copies of letters, Baron v. United States (C. C. A.) 286 F. 822; Id., 262 U. S. 749, 43 S. Ct. 524, 67 L. Ed. 1213; telegrams, Donegan v. United States (C. C. A.) 287 F. 641; permits and invoices, United States v. Kraus (D. C.) 270 F. 578; tents, harness, etc., Reutlinger v. State, 29 Okl. Cr. 290, 234 P. 224; implements, Rambo v. State, 38 Okl. Cr. 192, 259 P. 602; identification cars authorizing the purchase of liguor, Commonwealth v. Keister, 289 Pa. 225, 137 A. 223; ledger, etc., Marron v. United States, supra.

In the present instance, the search warrant used was one obtained under an affidavit in which it was alleged that the place to be searched was one in which “intoxicating liguors were sold and manufactured.” As grounds of belief, the affidavit contains the following:

“That the particular facts, circumstances and statements as set out in this affidavit are within the knowledge of affiants true and correct; that in addition to affiants’ own knowledge concerning the above described place and party, affiants are in possession, of other information as follows: That Mart Holman, on March 3, 1930, bought a pt. of whisky from Mat Stokes and paid for same in part with a $1.00 marked bill marked ‘30’ and numbered D76898157A and this affidavit and. search warrant is intended to search for said marked $1.00 bill too. That said deft, has ‘rep’t’ of being a bootlegger; his place has often been reported to us as a place where liguor can be bought and is kept for purpose of sale.”

The following contains the command embraced in the warrant:

“You are therefore commanded to forthwith search the above described place and premises and if you find the above described intoxicating liguors, property, containers, utensils, implements and instrumentalities or any portion thereof, you will seize and take the same into your possession and bring the same before me at my office in Abilene, Texas, in said County and State on the 3rd day of March, A. D., 1930, so that then and there the disposition of the same may be made as in such cases provided for by law; and you will also arrest and bring before me at same place and time the above-named or described party, who is alleged to be in charge and control of the above described place, and who is alleged to be violating the liquor laws of the State of Texas.”

The warrant makes no reference to the $1 bill, and cannot, in our opinion, be treated as invalid because of the recitals in the.affidavit. Assuming the validity of the search warrant, the Officer executing it would seem authorized to seize the $1 bill which bore on its face, as viewed by the officer who marked it, its connection with the unlawful possession and salé of intoxicating liguor. Article 692, P. C., directs that intoxicating liguors or any personal property used for the purpose of violating the liquor laws of this state shall be seized by any officer with or without a search warrant. Article 688, P. C., denounces as a common nuisance a house in which intoxicating liquor is sold, and declares that all intoxicating liquors and property kept or used in maintaining such place are a common nuisance, which is denounced as a -penal offense in article 689, P. O. The marked $1 bill obtained by the accused in exchange for the intoxicating liquor which he sold and the place kept by him, according to the state’s evidence, would apparently come within the purview of the statutes to which reference has just been made.

In the case of Furlong v. United States, 10 F.(2d) 492, 494, officers gave a marked $1 bill to two persons, and directed that they enter Furlong’s place and purchase intoxicating liquor. As soon as the liquor was purchased and paid for with the $1 bill, the two persons making the purchase took the liquor to officers who were nearby. The officers then arrested Furlong (the keeper of the place), and caused to be taken from the cash register the marked $1 bill mentioned. The accused resisted the introduction of the evidence showing the transaction, and was overruled by both the trial court and the appellate court. In the opinion, the Circuit Court of Appeals, Eighth Circuit, used the following language:

“ ‘The arresting officer ought to consider the nature of the accusation; then if he finds on the prisoner’s person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or ás supplying proofs (relating to the transaction, he may take and hold them to be disposed of as the court directs.’ * * *
“It is the duty of the officer making an arrest to take money or other articles connected with the crime, or evidencing its commission, from the person of the defendant, or from Ms possession or control, and hold the same subject to the order of the court. In this case the officer had the 'same right to take the marked bill from defendant’s cash register as from his pocket. The extent of the search and seizure at the time of arrest must depend to some extent upon the nature of the crime.”

Apparently the ¡officer, in the present instance, equipped with a search warrant giving authority to search the premises in which intoxicating liquors were kept and sold and to seize such articles as well as all contraband property designated in the statutes above mentioned, viz., articles 68S, 690 and 691, P. C., would not be without authority to seize the marked bill which was the fruits. of the crime of which appellant was accused, and which would likewise be evidence that his place was one in which intoxicating liquors were kept for sale.

Some confusion comes from the vast number of decisions of the appellate courts in recent years dealing with the subject of searches and seizures. To the best of our ability, the questions raised here have been investigated, and we- are of the opinion that, in receiving evidence showing the seizure of the $1 bill, the learned trial judge did not offend against the rules of evidence. It may be added that it is not made perfectly clear that ¡the conclusion just announced is essential to support the judgment of conviction. If the sale of whisky by the appellant on the occasion in question is controverted,, it is very meagerly so, and by circumstances alone. The alleged purchaser testified to the purchase from appellant, and said there was present a woman whom the witness did not know, but who was by the witness assumed to be-the wife of the appellant. The wife of the appellant testified that she saw no sale of whisky, and never saw the state’s witness except on the trial.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We appreciate the force and earnestness of appellant’s motion for rehearing, and the Written argument in support thereof, but are of opinion that the case was properly decided originally, and that the case of Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, has no application. In the instant case the affidavit for search warrant set out specifically that at a place named and described this appellant sold, and made in violation of law, spirituous, vinous, and malt liquors capable of producing intoxication; that, as justifying the making of said affidavit, it was further set out that on a date named Mart Holman bought a pint of whisky from appellant at said place, and paid him for same by giving him a marked $1 bill, whose mark and number were stated in the affidavit, which further set out that the warrant was desired for the purpose of searching the house for the containers, instrumen-talities, and property described in the affidavit, including said ⅜1 bill. The search warrant issued upon said affidavit directed that search be made for all such liquors, containers, -utensils, property, and instrumentalities, including said $1 bill, the number -and description of which was set out in the search warrant. That - such search warrant was¡ proper, and the affidavit sufficient- therefor, ¡seems beyond dispute.

As we understand appellant, he seems to concede that, if said money had been found as an incident to, or in connection with, his arrest, same could have been properly seized, and its use thereafter as evidence would have .been legal. We are not able to see the distinction between this proposition and the one embraced by proof of the seizure ¡of said $1 bill which had figured physically, and in a sense necessarily, in the illegal transaction, i. e., the sale of the whisky, as an incident , to, or coincident with, a search of appellant’s premises under a legal -search warrant directing search for all liquors, instrumentalities, property, etc. As- stated above, the marked $1 bill was accurately described in the affidavit and in the search warrant, but was only mentioned in connection with other things, search for which would clearly be legal.

This court has never gone -to the extent of holding that, when peace officers are engaged in a legal search of premises described in a search warrant, for the kind and character of -articles described in said warrant, and while so engaged discover other evidence of crime not so described, its seizure would be illegal, or that testimony concerning same when offered in a ease to which the testimony was pertinent would be rejected. We are not willing to hold that in a case such as this, where officers with a legal warrant went to the premises referred to, and found therein ' an instrumentality connected immediately with the alleged criminal transaction, on objection, testimony of such fact should be rejected upon.the trial of the accused, when the objection is based upon the proposition that the officers failed to find the other things mentioned in the warrant, and found only one of the instrumentalities with which the crime was committed. While we appreciate the argument and motion of appellant, we cannot agree to the soundness of the position taken.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    WHITEHEAD v. STATE.
    No. 14164.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is swindling, a felony; the punishment, confinement in the penitentiary for two years.

The indictment is based on subdivision 4 of article 1546, Penal Code, which denounces as swindling the obtaining of property by the giving or drawing of a cheek, etc. A motion to quash the indictment was duly presented to the court, and overruled. The indictment is fatally defective. It fails to set out directly the intent with which the property was acquired. It must be “with intent to appropriate the same to the use of the party so acquiring.” Article 1545, Penal Code; Stringer v. State, 13 Tex. App. 520. It is not alleged that the check was delivered to the owner of the property. Mathis v. State, 113 Tex. Cr. R. 164, 18 S.W.(2d) 920. There is no direct and positive allegation that appellant did not have on deposit with the. drawee bank sufficient funds to pay said check. We do not undertake to say that the indictment is not defective in other particulars.

The judgment is reversed, and the prosecution ordered 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.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    DANIELS v. STATE.
    No. 13945.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Rehearing Denied March 4, 1931.

      Joe W. Taylor and John N. Gauntt, both of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is attempt at arson; the punishment, confinement in the penitentiary for two years.

It is charged in the indictment, in substance, that appellant and M. J. Seale were the owners of a house situated within the city of Waco, McLennan county, Tex., and that appellant did willfully and with intent to burn said house and by means calculated to effect the object attempt to burn said house. Describing the means, it is alleged that appellant willfully placed a candle upon the floor of the house, and willfully placed a quantity of paper upon the floor and around said candle, and did willfully pour a quantity of coal oil and combustible liquid upon the paper and upon the floor, and did willfully set fire to the candle communicating with the house.

Appellant filed no motion to quash the indictment, but in his brief contends that it is fundamentally defective, in that the statute does not make it an offense for a part owner of premises to burn his house in an incorporated town or city, and further that the indictment fails to allege joint ownership and the particular facts that would have made the burning arson, such as that there was property of another in the house or that the life of some person was endangered. Article 1311, Penal Code, provides that the owner of a house may destroy it by fire or explosion without incurring the penalty of arson except in the eases mentioned in article 1312, Penal Code. Article 1313, Penal Code, provides that one of the part owners of a house is not permitted to burn it. An owner is liable under the terms of article 1312, supra, when the house is within a town or city, or when it is insured, or when it has within it any property belonging to another, or when there is apparent danger by reason of the burning thereof, that the life or person of some individual, or the safety of some house belonging to another, will be endangered. In Mulligan v. State, 25 Tex. App. 199, 7 S. W. 664, 8 Am. St. Rep. 435, it was said that an indictment against an ownhr or part owner for burning his own house must allege ownership in the accused and the particular facts which may bring him within the exceptions as amenable to prosecution. In Kelley v. State, 44 Tex. Cr. R. 187, 70 S. W. 20, it was charged in the indictment that the appellant burned the house of Mrs. E. Irwin, which said house was in the possession of and occupied by the appellant. It was insisted that the indictment was defective in that it failed to allege that the house was within a town or city, or that it was insured, or that there was within it any property belonging to another, or that there was any apparent danger by reason of the burning thereof that the life or person of some individual or safety of some house belonging to another might be endangered by the burning thereof. In referring to Mulligan v. State, supra, this court, speaking through Judge Brooks, said: “That ease turned upon the fact that the undisputed evidence demonstrated that the burning was not a house, but' a heap, of “house logs,” which previously constituted a house. It nevertheless sustains the proposition that the statutory offense of arson may be committed by the tenant in possession as against the owner of the estate in fee, and that an allegation of the facts setting forth his status as a tenant in possession, and alleging in whom lies the fee title, will be sufficient, without further alleging the elements of arson- committed by the owner, under article 864 of the Penal Code.”

In addition to the indictment in the present case averring that another owned the building with appellant, it is alleged that said building was situated in the city of Waco. If it should be contended that a part owner is not liable unless the conditions described in article 1312, supra, are present, it is observed that one of these conditions, namely, that the house was situated in the city of Waco, is alleged. On the other hand, if it should be contended that the provisions of said article 1312 are not applicable where the house is burned by a part owner, note is taken of the fact that the indictment charges that appellant and M. J. Seale owned the house. We are unable to reach the conclusion that the indictment is fundamentally defective. It might be duplicitous, but appellant made no motion to quash on that ground.

Officers had been watching the house in question for several nights. Hearing a noise, they approached just as appellant came out of the house. Entering the house they found a candle which had been placed in a snuff box as a holder. Paper saturated with coal oil was piled around the candle. There was coal oil on the floor. The candle had been burning as shown by the fuse. A match which had been struck was on the floor close to-the candle. Coal oil had been freshly poured on the paper and floor. The oil was still dripping. Appellant had a lid to a snuff box under his hat. The lid fitted the snuff can in which the candle was stuck. The house had no furniture in it, having been vacant for two or three days.

Appellant objected to the testimony of the officers touching what they discovered in the house, on the ground that they had no search warrant. The place entered by the officers was not the residence or the place of business of appellant, nor does it appear that its proximity to his residence or place of business was such as to make it necessary that the officers possess a search warrant. Greenwood v. State, 110 Tex. Cr. R. 478, 9 S.W.(2d) 352.

Appellant contends that the evidence shows that he was the sole and exclusive owner of the house, whereas it was alleged in the indictment that appellant and Seale were joint owners. It appears that appellant and Seale were jointly interested in an automobile which they traded’ for an equity in the house. The deed to the house was made to Mr. Seale. It is true that he testified that he had no interest in the house, and that he was holding the house for appellant. Nevertheless the facts and circumstances disclosed by the record are sufficient to reflect the fact that he and appellant were the joint owners of the automobile traded for an equity in the house. It does not appear that he had at any time alienated his interest to appellant. We think the proof supports the allegation in the indictment as to joint ownership.

Appellant contends that the evidence is insufficient to support the conviction, in that it shows no more than mere preparation to commit the offense. The case was submitted’ under a charge covering the law of circumstantial evidence. The court instructed the jury that the attempt to commit a crime is an endeavor to accomplish it beyond mere preparation but falling short of the ultimate design in any part of it. We think the circumstances were sufficient to justify the conclusion that appellant had set fire to the candle. It had been burning. A match that had been struck was near it. This went beyond mere preparation.

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.

LATTIMORE, J.

In the light of appellant’s motion we have again examined the facts in testimony. ■ Appellant and another had, by trading, acquired an automobile of the value of approximately $100, which they had traded for an equity in a vacant house which was insured and was located in a city. The excess value of the insurance over the incumbrance against the property was several hundred dollars. Eor some reason the officers were watching said house at night. Nothing occurred the first night or two, but on the night in question when the officers went to said house a little after dark they found the front door locked, but heard a sound as of some one scraping, and went to the back door and detected appellant in the act of leaving the house. Said officers went at once into the house, and in a closet found a candle held upright in a snuff can on the floor by papers stuffed around the candle. The candle and the papers were dripping with kerosene oil which was running over the floor. The wick of the candle showed to have been burned, and a partially burned match was lying on the floor not far away. The officers testified that there was a lot of paper piled around the snuff can which held the candle, which paper was dripping kerosene oil. Appellant had in his hand when the officers came upon him a teacup and a spoon. The officers searched him and found in his hat the lid of a snuff box which fitted the one the candle was in. In our opinion this was sufficient to justify the jury in concluding that appellant had attempted to burn the house in question. We see no reason for believing the search made by the officers il-' legal. Appellant made no explanation to the officers at the time of arrest of the facts and circumstances above detailed, nor did he take the stand and testify on the trial.

The motion for rehearing will be overruled.


author: HAWKINS, J.

text:
    BULL v. STATE.
    No. 14116.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Killough & Dotson, of Vernon, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment, one year in the penitentiary.

The evidence is brief. Appellant was driving a car and approached a point where some officers were and then turned back .down another road. It was in evidence from the of-fleers that when they were about seventy-five steps from appellant’s car they saw him throw a sack out of the car. Upon investigation the sack was found to contain three unbroken half-gallon jars of whisky and one similar jar broken. Appellant denied throwing the sack from the ear, and asserted that if it was thrown out it was done by the woman who was with him in the car. He claimed to have been driving for the woman and that she placed the sack in the car, but that he did not know it had whisky in it. Appellant introduced a witness who testified that she had given the woman who was in the ear with appellant $3 to get some whisky for the witness.

The first bill of exception presents an error for which the case must be reversed. It reflects that upon cross-examination appellant was asked by the district attorney the following question: “Were you arrested last winter, a year ago, in a car with some whisky here in Vernon and carried to the Federal Court?” Prompt objection was interposed to said question as not being a proper inquiry for impeachment purposes. The objection was overruled, and appellant answered that he was arrested and taken to Wichita Falls but that no case was filed against him. It will be noted that the question objected to is entirely different from the one in the Criner Case, 89 Tex. Cr. R. 226, 229 S. W. 860, 861. There the question was if the witness had not been arrested and “charged in court” with some offense. Here the question was simply as to his arrest. Judge Lattimore, writing for the court, on rehearing in the Criner Case, said:

' “The question as asked was not erroneous, but we again assert that questions as to mere arrests, or as to charges, in the broad sense, are too general.”

The general rule is concisely stated in Branch’s Ann. Tex. P. C. § 168, p. 51, in the following language:

“Proof of mere accusations against, or evidence of particular acts of misconduct, is not admissible to affect the credibility of a witness. Defendant or any other witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or with a misdemeanor imputing moral turpitude.”

Many authorities are cited supporting the text. Later cases are: McClure v. State, 100 Tex. Cr. R. 545, 272 S. W. 157; Wilson v. State, 108 Tex. Cr. R. 397, 1 S.W.(2d) 305; Newells v. State, 100 Tex. Cr. R. 261, 272 S. W. 492; Bridges v. State, 99 Tex. Cr. R. 627, 271 S. W. 87, 89; Shamblin v. State, 88 Tex. Cr. R. 589, 228 S. W. 241; Lasater v. State, 88 Tex. Cr. R. 452, 227 S. W. 949; Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822. In Bridges’ Case, supra, accused was complaining because he had been denied the right to cross-examine the state’s witnesses as to certain felony charges which had been filed against them in justice court, but in which no indictment had been returned. Judge Lat-timore said in that case:

“The proposition has often been before this court that one who had been charged in a justice court with a felony, might not be examined as to the fact of such charge, if the record showed that the grand jury had met subsequent to the arrest and making of the charge in the justice court, and had returned no bill of indictment.”

In the present case no charges even of a preliminary character seem to have been filed in any court. Over objection, improper proof of an arrest regarding some whisky transaction went to the jury. It was not admissible on the question of impeachment and no limiting charge to that effect was given. It was placed before the jury, and they were left to appropriate it for any and all purposes. Its effect was obviously harmful.

Bill of exception No. 3 presents complaint " at the argument of the district attorney to the effect that he could not put witnesses upon the stand to show the reputation of appellant because appellant had not introduced any testimony upon that issue. The entire bill, including the court’s explanation, leaves us in doubt whether the argument of appellant’s attorney can be regarded as having invited the objectionable argument complained of. It raises a serious question. We do not discuss it, as it will not likely arise in this form on another trial.

Bills of exception 2 and 4 do not present error.

Judgment reversed, and cause remanded.


author: CALHOUN, J. MORROW, P. J.

text:
    WARD v. STATE.
    No. 14070.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    State’s Rehearing Denied March 4, 1931.

      Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, possession of intoxicating liquor for the purpose of sale; punishment, one year in the penitentiary.

The state offered on the trial the testimony of Joe Bailey Toombs and Hollis Haynes to the effect that they had been to the house of the appellant on Sycamore street in Abilene, Tex., as, on two or more occasions either in December, 1929, or January, 1930, and that they had purchased whisky from the appellant in person on each occasion. The evidence also was to the effect that, when they bought the last whisky from appellant some time in January, 1930, and had gone away, they came back 'to get some more whisky. Witness Toombs testified that he stayed on the front porch, and that Haynes went into the appellant’s house to get the whisky, that Haynes was talking pretty loud, and that the first thing he knew a couple of laws arrested them both and put them in the city jail. The witness Haynes testified that, when they went to the appellant’s house the last time, they went there to get some whisky, but did not get anything to drink at that time, but that he had gotten some whisky from appellant prior to the last time he went there, either in the afternoon or night, that the police came down there and arrested them, carried them to jail, and that he was arraigned in the city court the next morning, and he believed he was charged with disturbing the peace, and that he paid a fine.

Appellant’s wife testified that on the night of the disturbance the state’s witnesses, Toombs and Haynes, came to their house; that Haynes first called, and then he came in; that Toombs stayed on the porch; that Haynes came into the house, and said he wanted some whisky; that she told him that they did not have any whisky; that he told her, if she did not let him have some whisky or get him some, they were going to stack the furniture, and that she told him, “You can’t do that,” and that he said, “Yes, I am, who is going to keep me from it?” that she then phoned for the police. She further testified that both Toombs and Haynes were drunk. She further testified that they had never had any whisky in their place for sale and had never sold any whisky. Substantially to the same effect was the testimony of Clara and Floyd A. Ward and Mrs. Gene Deisher, who were the daughters and son of appellant, as to what occurred at appellant’s house.

The witness T. A. Hackney, being recalled by the appellant, testified that, when he got to the house of the appellant on the night in question, where he had been called to make an arrest, he found Mrs. Ward, her children, Hollis Haynes, and Joe Bailey Toombs there; that Mrs. Ward told him what the trouble was, and that he arrested Haynes and Toombs; that he had no trouble with them to speak of; that they did not offer to fight him; that Haynes was drunk and Toombs was drinking; that it was between 11 and 12 o’clock at night. There was no evidence of-, fered by the state that the appellant was present at the time of the arrest of the witnesses Haynes and Toombs.

By appellant’s bill of exception No. 3 it is shown that, upon cross-examination of the witness T. A. Hackney by the state, he was permitted to state that, when he arrested the witnesses Haynes and Toombs at appellant’s house, and had left the house 'with them, they were cursing the appellant for being a bootlegger and for selling them liquor, and that appellant objected for the reasons then stated that such conversations occurred after Haynes and Toombs were arrested and while the officer was on the way to the police station with them, and that such conversations were no part of the res gestee, and said evidence was allowed to go to the jury over appellant’s objection, and that the trial court refused appellant’s request to exclude it from the jury upon the same grounds as the appellant had theretofore objected to its introduction, and that the appellant in open court excepted to the action of the court.

The fact as to whether the appellant had sold any whisky to the witnesses, Haynes and Toombs, or whether he had any whisky in his house, was closely contested. There is in the record no evidence that said witnesses purchased any liquor from any one at the time of their visit to appellant’s home when they were arrested there. The statement made after their arrest while being carried away by the officers was not part of the res geste. Not being part of the res geste, and the evidence failing to show that the statement was made while appellant was present, it was error to permit the state to holster up its witnesses hy proof that said witnesses made similar statements in harmony with their testimony on the present trial, as such witnesses had not been attacked on the statements sought to be supported, and said statements in this state could not have been offered for any other purpose hy the state except to attempt to bolster up its witnesses. The simple denial of the sale by appellant’s witnesses did 'not by itself give the state the right to support its witnesses. Dorman v. State, 64 Tex. Cr. R. 104, 141 S. W. 526; Long v. State, 58 Tex. Cr. R. 29, 124 S. W. 640; Conway v. State, 33 Tex. Cr. R. 327, 26 S. W. 401. The admission in evidence of the declarations of the witnesses Haynes and Toombs made to the arresting officers was prejudicial to appellant, and should not have been admitted in evidence, and calls for a reversal.

The evidence of J. W. Ducker complained of in appellant’s bill of exception No. 2 was withdrawn from the jury by the trial judge, and therefore not necessary to be considered.

The facts stated in appellant’s bill of exception No. 1 and the trial judge’s qualification thereon shows no reversible error.

For the error indicated, the judgment is reversed and 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.

MORROW, P. J.

State’s counsel contends that the paragraph of the court’s charge, reading as follows: “You are charged that in this case the State relies for a conviction upon the transaction wherein the witness Joe Bailey Toombs testified that he went to the door of the defendant’s house and purchased whiskey from him and the witness Hollis Haynes remained in the car, and you will not consider the other transactions introduced by the State for any purpose,” had the effect of withdrawing from the consideration of the jury the proof of the declarations of the witness Hackney, in the absence of the appellant. As set forth in the original opinion, the paragraph of the court’s charge quoted is regarded but information to the jury that the state had elected to rely upon the transaction described therein, and we think cannot be fairly interpreted as the withdrawal of the testimony improperly received, as shown by the original opinion.

The motion is overruled.


author: MORROW,' P. J.

text:
    BURGE v. STATE.
    No. 13970.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.

      David E. O’Eiel and Jno. A. Veillon, both of Beaumont, for appellant.
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW,' P. J.

The unlawful sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one and one-half years.

The evidence that the appellant sold intoxicating liquor to Buddie Hamilton was proved without controversy.

It appears from bill of exception No. 1 that, after witnessing the sale of the whisky to Buddie Hamilton, the officers (Daniels and Gardner), procured a search warrant and searched the house of the appellant, and discovered therein a quantity of intoxicating liquor. The reception of this evidence was opposed upon the ground that it was proving another and different offense. The testimony showing the alleged sales of whisky taking place on the same day as the search of the appellant’s premises was so closely connefcted with the transaction on which the prosecution is based as not to come within the rule excluding evidence of other offenses. The evidence was admissible as tending to prove that the whisky found in the appellant’s house was possessed by him for sale.

It appears from the evidence that Buddie Hamilton and Jerry Hamilton were in jail; that, while in custody of the sheriff and his deputy, Gardner and Daniels, they were taken to the home of the appellant, and, while Gardner and Daniels were concealed, the -purchase of the whisky was made by Buddie Hamilton; the sheriff and his deputy being near enough to observe and hear the transaction. After purchasing the whisky, Buddie Hamilton, delivered it to the sheriff. Both the sheriff and his deputy testified upon the trial and identified the whisky, and corroborated Hamilton touching the incidents of -the purchase.

From bill of exceptions No. 2, it appears that out of the regular panel nine jurors were selected, and that the sheriff and his deputy were instructed to summon twelve talesmen. From the bill it appears that thereupon the defendant objected upon the ground that the sheriff and his deputy were material witnesses for the state, and had been active in the transaction, and were therefore prejudiced against the accused. Exception was reserved to the action of the court in overruling the objection. The talesmen were brought into court and examined. It appears that Carl 'Daniels, one of the talesmen, was a brother of Jim Daniels, the deputy sheriff The appellant had previously exhausted his peremptory challenges, and sought to have Carl Daniels excused from the list, for the reason that because of his relationship to his brother, who was a material witness and interested in the prosecution, which disqualified him from becoming an impartial juror. The objection was overruled, and Carl Daniels, whose name was near the top of the list, was called as a juror to try the case against the appellant. Torrans v. State, 98 Tex. Cr. R. 298, 265 S. W. 560, and Villareal v. State, 80 Tex. Cr. R. 133, 189 S. W. 156, cited by appellant, while refusing to sustain a similar point, do so on the ground -of lack of diligence in asserting it, and intimate that on proper presentation it might be erroneous.

Forcing the appellant to try his case before a juryman who was a brother of one of the principal witnesses in the case against the protest of the appellant, and at a time when his peremptory challenges were exhausted, had the effect, of depriving the appellant of a trial before an impartial jury.

Among the cases which in'principle declare that a juror was not impartial, and that in a felony case one out of the twelve jurors being forced upon the accused without his fault vitiates the verdict, is Randle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953. See remarks of Presiding Judge Davidson, 34 Tex. Cr. R. page 62, 28 S. W. 953. See, also, Duncan v. State, 79 Tex. Cr. R. 206, 184 S. W. 195. In Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 299, 303, it was said: “One improper juror destroys the integrity of the verdict.”

In Steagald v. State, 22 Tex. App. 464, 3 S. W. 771; Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758, it was held that “impartial means not partial; not favoring one party more than another, unprejudiced, disinter-I ested, equitable, just.”

The brother of the principal witness in the present case could not be impartial. It is a ease in which the brother of the juror had been an actor in bringing about the commission of an offense by sending to buy whisky from the appellant one who was in custody of the law, and who, standing by, witnessed the offense.- Over the objection of the appellant, the witness was commissioned to bring tales-men into court and select among the talesmen his own brother. Though qualifying on his , voir dire, the brother of the principal witness obviously could not impartially weigh the testimony of his kinsman against that of others. The trial of a citizen for his liberty involves, not only the interest of the accused, but the interest of the state, and no precedent should be made which would impinge upon the demands of the Constitution that -a binding verdict shall be by an impartial jury.

In the opinion of the writer, the trial court should not have allowed the brother of the principal witness to become a trier of the accused, and for that reason the judgment should he reversed and the cause remanded,


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

text:
    HERRING v. STATE.
    No. 13434.
    Court of Criminal Appeals of Texas.
    June 11, 1930.
    Appeal Reinstated June 26, 1930.
    On the Merits Oct. 8, 1930.
    Rehearing Denied Feb. 18, 1931.
    Application for Leave to File Second Motion for Rehearing Withdrawn March 13, 1931.
    Miller •& Price, of Waco, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   CHRISTIAN, j.

The offense is driving an automobile on a street in an incorporated city while intoxicated ; the punishment, a fine of $150 and confinement in jail for 90 days.

The recognizance is fatally defective. It is recited therein that appellant stands charged with driving an automobile while intoxicated, and that he has been convicted of the offense of driving an automobile while intoxicated. We have no statute forbidding one, in terms, from operating a motor vehicle while intoxicated. In order to come within the prohibition of the statute, the accused must drive or operate such motor vehicle upon a street or alley or other place within the limits of an incorporated city, town, or village, or upon a public road or highway within the state. Article 802, P. C.; Nicholson v. State, 110 Tex. Cr. R. 112, 7 S.W.(2d) 1075; McFadden v. State, 108 Tex. Cr. R. 166, 300 S. W. 54.

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 to Reinstate.

CHRISTIAN, J.

The appeal was dismissed at a former day of the term because of an insufficient recognizance. A 'sufficient bond, properly approved, having been timely filed, the appeal is reinstated, and the case will stand for later consideration on its merits.

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 the Merits.

CHRISTIAN, J.

The appeal was dismissed at a former term, but later reinstated. The case is now considered on its merits.

The officer who arrested appellant testified that while drunk, appellant drove an automobile on a street in the city of Waco. The testimony of the officer was not controverted.

The record discloses that appellant entered a plea of guilty and that he was duly admonished by the court of the consequences of said plea. Appellant seeks now to challenge the sufficiency of the evidence. On a plea of guilty, the sufficiency of the evidence may not be challenged, except in a case in which the facts adduced are such as to show innocence or in which there is no legal evidence adduced. Crumbley v. State, 103 Tex. Cr. R. 391, 280 S. W. 1064, and authorities cited.

Bill of exception No. 1 is concerned with the argument of the district attorney, wherein he stated that no one had challenged the statement of the officer that “no one got out of appellant’s automobile.” It is stated, as a ground of objection, that appellant did not testify and that no one else could have made the denial. It appears from the court’s qualification of the bill' that appellant’s counsel had taken the position in argument that some one else might'have been driving the car when the officer saw it. The statement of the ground of objection is not a certificate on the part of the trial judge that no one else could have denied that a person other than appellant got out of the automobile. A statement of a ground of objection is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. The bill of exception is insufficient to manifest error. While the question is not before us for decision, it is doubtful if the bill would in any event under the record here manifest error. Appellant pleaded guilty in the presence of the jury to driving the automobile under the conditions charged in the indictment.

Appellant’s motion to quash the indictment was properly overruled. It was charged in the indictment that appellant was under the influence of intoxicating liquor when he drove the automobile. It was further averred that he was in a degree under the influence of intoxicating liquor. If the language “in any degree under the influence of intoxicating liquor” is so vague and indefinite as to make it obnoxious to the provisions of our Constitution, the use of such language did not have the effect of invalidating the indictment. Rejecting it as surplusage, the indictment still charges appellant with having driven his automobile while intoxicated. That part of the statute denouncing as an offense the driving of an automobile while intoxicated has been upheld. Nunn v. State (Tex. Cr. App.) 26 S.W.(2d) 648. See article 802, P. C.

The proof was undisputed that appellant was drunk when he drove the automobile. Hence the fact that the court submitted that phase of the statute authorizing a conviction for driving an automobile while in any degree under the influence of intoxicating liquor would not, if error, warrant a reversal.

An examination of all of appellant’s contentions leads us to the conclusion that error is not presented.

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.

MORROW, P. J.

On the original hearing the record was made to appear that a plea of guilty was entered by the appellant. By the corrected transcript it is now made to show that the plea was not one of guilty.

Rutherford, an officer, testified in the most positive terms that about the 22d of October, 1929, the appellant drove his automobile upon a public street while he was drunk. A doctor testified on behalf of the appellant to the effect that on the 27th of October, he treated the appellant for delirium tremens, a malady due to the chronic use of alcohol which produces a form of insanity. The doctor said that his treatment of the appellant began some five days after tbe occurrence upon wbicb tbe present transaction is founded and that be was not able to give an opinion as to tbe condition of bis mind at ' that time as distinguishing between tbe right and wrong of tbe particular happening, but that in bis opinion, at tbe time tbe appellant came under the observation of tbe witness be bad been suffering from delirium tremens for three or four weeks. Tbe doctor further testified that delirium tremens is a temporary form of insanity, that is, “if they quit drinking it will clear up eventually.” “It also depends upon tbe condition of tbe patient.” The doctor said that tbe appellant drank nothing while at the sanitarium, wbicb was after tbe witness began treating him. At tbe time of tbe trial the doctor said that be regarded tbe appellant capable of distinguishing between right and wrong. Tbe officer making tbe arrest testified to circumstances, that is, to words and acts of tbe appellant at tbe time of bis arrest, wbicb tended to show bis ability to estimate the events at tbe time.

In bill of exceptions No. 1, tbe remark of counsel for tbe state is criticized as an indirect reference "to the failure of tbe appellant to testify. From tbe bill it is doubtful 'whether the remark was shown to have violated the statute. However, as qualified, it appears to have been invited by the remarks of counsel for the appellant. An invited remark cannot be made tbe basis for a reversal. See Branch’s Ann. Tex. P. C. § 363, and cases collated; among them, Baker v. State, 4 Tex. App. 223; Martin v. State, 41 Tex. Cr. R. 246, 53 S. W. 849.

The indictment is attacked as being based upon an invalid statute, and also as being duplicitous. Both claims are based upon the verbiage of article 802, P. G. 1925,-wherein the following words appear: “Or in any degree under the influence of intoxicating liquor.” The validity of the statute has been upheld, though the words mentioned, that is, “in any degree,” have been regarded as surplusage and ought not to be embraced either in the indictment or the charge to the jury. The indictment charges that tbe appellant was intoxicated and in a degree under the influence of intoxicating liquor. It is not duplicitous. Only one offense is charged. The words “in any degree” are sur-plusage and should have been omitted from the 'indictment, but their presence, under the facts of the case, furnishes no ground for a reversal of the judgment.

In bis charge to the jury the court instructed upon the law applicable to permanent insanity and temporary insanity due to the recent voluntary use of intoxicating liquor. The evidence is such as to support' the propriety of each of the charges. The doctor who testified that the appellant was suffering from delirium tremens said that-it was a form of temporary insanity due to alcoholism. However, he did not see the appellant until five days after his arrest. At the time of his arrest, the officer designated the appellant as drunk.

Finding no error in the record, the motion for rehearing is overruled.


author: SMITH, J.

text:
    LACKEY et al. v. SOUTHLAND GREYHOUND LINES, Inc.
    No. 8541.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1931.
    Rehearing Denied March 4, 1931.
    Edward Dwyer, P. H. Long, and A. S'. West, all of San Antonio, for appellants.
    Walter Groce, Sylvan Lang, and Morris Wise, all of San Antonio, for appellee.
   SMITH, J.

Etta R. Lackey and her husband, Tom Lackey, journeying along a public highway, parked their car on one side of the road for repairs. Mrs. Lackey remained seated in the car while her husband got_ out to make the repairs. A large passenger bus belonging to Southland Greyhound Lines, Incorporated, and operated by one of its drivers, collided with the rear of the Lackeys’ parked car, injuring Mrs. Lackey. She and her husband brought this suit against the bus company for damages, but judgment was rendered against them in consequence of a' jury finding that the accident was proximately caused by the negligent position in which Lackey had parked his car in the roadway. The Lackeys appealed, and seek reversal upon the sole ground that the jury was guilty of misconduct in reaching their verdict. There is no statement of facts with the record.

It is contended that the jury offended the proprieties in three particulars: First, that in their deliberations “some one in the jury room mentioned to the other jurors that the (appellee) is fully insured to cover all damages” ; second, that after agreeing to give appellant $2,500 in damages, some of the jurors told “the others that the attorneys were to receive half; therefore, instead of giving $2500 they must make it $5000,” which amount they agreed upon and found; third, that some of the jurors made the statement “in the jury room (while considering their verdict, and after agreeing to give the plaintiff a certain amount of damages), that ‘it doesn’t make any difference how we answer question No. 5 (c)’ (said question being as to plaintiff’s husband’s contributory negligence), ‘it will not affect plaintiff’s recovery.’ ”

In the absence of a statement of facts, it is impossible to determine if the discussion of the matter of insurance in the jury room constituted misconduct; for such discussion may have been warranted by the evidence. In any event, the discussion would, in its very nature, inure to the benefit of appellants rather than of their ad-vérsaries) and no presumption of injury to appellants could- arise from the incident. We overrule appellants’ first proposition.

The discussion concerning attorney’s fees constituted flagrant misconduct, unless, indeed, the evidence in the case warranted it, which is difficult to surmise. But, however reprehensible that conduct may have been, appellant is in no position to complain, since it resulted in doubling the amount of damages the jury awarded to appellants, and which they would have recovered but for adverse findings upon other issues. Appellants’ second proposition is accordingly overruled.

Four jurors testified at the hearing of appellants’ motion for new trial. Appellants contend that the testimony of these witnesses conclusively established the fact of misconduct set up in appellants’ third ground of complaint, which is, in effect, that the jury resolved special issue No. 5 (c) against appellants upon the question of contributory negligence, in the erroneous belief that their answer to that issue was rendered immaterial by reason of their further finding that appellants had been damaged in the sum of $5,000; that when the jury reached this issue in the charge they passed over it and first determined the amount of damages; and that upon the statements of some of the jurors that it did not then matter how they answered the issue of contributory negligence, it would not affect appellants’ right to recover, the jurors then returned to special issue 5 (c) and answered it in the affirmative, contrary to the true belief of some of the jurors. We have very carefully considered all the evidence concerning this transaction, and have reached the firm conclusion'that the fact of misconduct was not conclusively established, and remained a question to be determined in the discretion of the trial judge. The testimony warranted the implied findings of the trial judge that the jury separately considered and answered each issue in its due order and without material reference to its relation to any other issue, or to the whole case, in accordance with both the letter and spirit of the statute. It is true that one or two of the jurors testified that there was some vague discussion of the effect of the finding of contributory negligence upon appellants’ right of recovery, but the evidence as a whole warranted the trial court’s implied finding that this discussion was cursory and inconclusive and had no’ material influence upon the jurors’ findings. Certainly the testimony did not show that the jury’s finding upon contributory negligence would have been different but for such discussion. The most that may be -said in support of appellants’ contention is that the testimony raised an issue of fact as -to whether or not there was misconduct in the particular urged, which question the trial judge in his discretion resolved against appellants. That finding is amply supported by the testimony, and is binding upon this Court. We overrule appellants’ third and fourth propositions of law, and the judgment will be affirmed. •


author: WALKER, J.

text:
    FIRST STATE BANK OF MONTGOMERY et al. v. KAMERON.
    No. 2042.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 29, 1931.
    Rehearing Denied Feb. 25, 1931.
    S. A. Crawford, of Conroe, for appellants.
    Strode & Pitts, of Conroe, for appellee.
   WALKER, J.

On the 22d day of May, 1926, appellee Tom Kameron and appellants W. H. Lynch and M. R. Rabun entered into the following contract:

“State of Texas
“County of Montgomery
“It is agreed toy and between the parties hereto, being Tom Kameron, party of first part, and M. R. Rabun and Buck Lynch, par: ties of second part, that said parties of the second part shall have the right to cut and remove all cross ties off and from a certain 320 acre survey of land in Montgomery County, Texas, known as the J. I. Foster Survey, belonging to party of first part, and in consideration, the parties of the second part agree to pay party of the first part the sum of six cents per tie for each and every tie cut and removed by them from said land; and further provided that if said ties should sell for more than forty cents each to the railroad company or tie company buying same, that the excess of 40 cents per tie shall toe divided equally between each party hereto, that is to say one third to party of first part and two thirds to parties of second part, and if said ties should sell for less than 40 cents each tie, then party of first part agrees to stand one third loss below said 40 cents.
“It is further agreed that all vouchers issued for said ties shall come to and be received by the First St,ate Bank of Montgomery, Texas, which said bank is authorized to make distribution of said money as per above agreement.
“Witness our bands in duplicate, this 22 day of May, 1926.
“Tam Kameron,
“Party First Part.
“W. H. Lynch
“M. R. Rabun
“Parties Second Part.”

The ties cut from appellee’s land under this contract sold for more than 40 cents each, and the parties, being unable to agree on the amount due appellee Kameron for the excess above this price, deposited with the First State Bank of Montgomery the amount in dispute. W. H. Lynch and M. R. Rabun, having executed to the bank a satisfactory bond, were permitted by it to withdraw the money thus deposited.

This suit was by appellee Tom Kameron against appellants W. H. Lynch, M. R. Rabun, and the First State Bank of Montgomery to recover the sum of $257, as the amount in dispute. In effect, the suit was for the purpose of construing the contract. Appel-lee pleaded the contract, and on its literal language, claimed that W. H. Lynch and M. R. Rabun were due him the sum sued for as the excess value of the ties cut from his land. These appellants answered by general demurrer, general denial, and further that the contract, as written, did not express the intent of the parties, in that it stipulated only for the cutting of the 40-cent tie when the facts were the parties contracted for the cutting of both a 40-cent tie and a 60-eent tie; that the 40-cent tie sold for 55 cents and on this tie appellee was due the stipulated excess; and that the 60-eent tie sold for 75 cents and on this tie appellee was due the stipulated excess above 60 cents, and not above 40 cents. If appellants are correct in their construction of the contract, or if it can be reformed in accordance with their plea, nothing further was due appel-lee. But if he was entitled to the stipulated excess above 40 cents for all ties cut from his land, then an additional sum was due him above what appellants had already paid him. The trial was to a jury and on conclusion of the evidence both parties asked for an instructed verdict. Ap-pellee’s motion was granted and judgment rendered in his favor for the amount sued-for. In support of this judgment the lower court, filed conclusions both of fact and law, to which appellants duly excepted.

No exceptions were sustained against appellants’ plea of mistake in execution of the contract. The following was all the testimony offered ,by him on this issue, which was refused by the lower court:

“Be it remembered that on the trial of the above entitled and numbered cause in this court on the 24th day of April, 1930, while the defendant, M. R. Rabun, was on the witness stand he was asked the question by his counsel if by mistake there was left out of tjie tie contract, which was signed by Tom Kameron, M. R. Rabun and Buck Lynch, a clause which had ¡been agreed upon between them wherein the contract provided for a 60-cent tie being cut and sold from the 320 acres of land in the J. I. Foster survey as well as a 40-cent tie, the latter being mentioned in the contract, to which question counsel for Tom Kameron, plaintiff, excepted because it varied the terms of the written contract and to which question the defendant, M. R. Rabun, would have answered, if he had been permitted to do so by the court, that the contract should have mentioned the 60-cent tie as well as the 40-cent tie.”

Without additional supporting evidence, no error was committed in excluding this testimony. Appellants rested under the burden of showing the real contract. This testimony did not go that far. There was no suggestion by this testimony as to the excess to be paid appellee on the 60-cent tie. The testimony did not even suggest that he was to be paid any excess on the 60-cent tie, provided the parties were contracting in «view of a tie at that price. The evidence offered and excluded was wholly immaterial on the record made by appellants.

Appellants further insist that the trial court should have instructed a verdict in their behalf, in any event, on the theory that there was no evidence as to the amount due appellee under his construction- of the contract. The record does not sustain this proposition. No issue was made by the evidence as to the amount due appellee, provided he was correct in his theory of the case. T. 11. Wilcox, cashier of First State Bank of Montgomery, with whom this money was on -deposit in escrow, -testified as follows as to the amount in controversy:

“I did not figure this out myself; but took their figures for it. It is the amount that all parties at the time agreed to be held in trust.”

There was no conflict as to this testimony. The contract being unambiguous, and there being no evidence that it was executed by mistake, and the evidence being undisputed as to the amount held in escrow by the First State Bank of Montgomery, the court correctly instructed a verdict for ap-pellee.

It is therefore our order that the judgment of the lower court be, and the same is hereby, in all things affirmed.


author: COBBS, J. SMITH, J.

text:
    LIPSCOMB et al. v. BUTLER.
    No. 8601.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1931.
    Rehearing Granted and Cause Reversed and Remanded Feb. 18, 1931.
    B. P. Lipscomb, of San Antonio, for appellants.
    Geo. M. Clifton, of San Antonio, for ap-pellee.
   COBBS, J.

This suit by appellee was to enjoin appellants from ejecting appellee from the rented premises which he occupied at 3409 North St. Mary’s street, in the city of San Antonio, on account of nonpayment of rent.

The ease was tried by the court without a jupy, who found in favor of appellee, as follows:

“I find as a fact that the plaintiff, E. Butler was on October 11, 1930, and for some time prior thereto, a tenant of the defendant E. P. Lipscomb, and that the said plaintiff prior to said date was indebted to the said' defendant for rents on the premises occupied by Butler and in controversy in this suit and that the defendant Lipscomb was indebted to the plaintiff for work and services and that on said October 11,1930, plaintiff and defendant had a settlement of accounts and that the tenant Butler was given a receipt for payment of all rents up to November 21, 1930, and that all debts for services claimed by plaintiff against said Lipscomb were can-celled and paid.
“I find as a. fact that plaintiff Butler while a tenant of defendant Lipscomb had constructed a workshop on the premises in controversy in this suit with the agreement and understanding that such improvements so constructed were to remain the property of said Butler with the right of removal thereof.
“I find as a fact that plaintiff Butler and defendant Lipscomb had some verbal negotiations relative to the value of the workshop in which plaintiff was asking the sum of $150.00 for the workshop of defendant Lipscomb, that following such • negotiations defendant Lipscomb wrote a letter to plaintiff Butler in which he offered or proposed the value of said workshop to be seven month’s rental of the premises in controversy, which proposal I find the fact was by plaintiff Butler accepted.”

This contract was based upon correspondence between the parties. The court also found that by erecting the workshop on the premises appellee paid his rental up to June 21, 1931, and is entitled to peaceable possession of said premises up to that time.

The contract is based upon the letter appellant wrote during the negotiations in an effort to settle the rent, in which he offered or proposed the value of said shop to be seven months’ rent of the premises in controversy. To this letter appellee replied: “I accept your offer of seven months rent for my building.”

We think the case was fairly tried and justice administered, and the judgment is affirmed.

On Motion for Rehearing.

SMITH, J.

As will be seen from the original opinion, the trial court found that appellant and ap-pellee entered into a contract whereby the latter acquired the right to continue in peaceable possession of premises he had previously rented from appellant, until June 21, 1931. This finding appears to have been based upon the following correspondence passing between the parties:

“Mr. E. Butler,
“3409 N. St. Mary’s St.,
“San Antonio, Texas
“Dear Sir,
“I have done at least $150.00 worth of law work for you, that I probably will never receive any pay for. I have also advanced $32.00 for the bankruptcy proceeding against the American Pecan & Nut Company. I may never get this back. Under the circumstances, I do not think you ought to expect any more for the workshop than seven (7) months rent.
“Yours very truly, E. P. Lipscomb.”
“Mr. E. P. Lipscomb:
“I accept your offer of Seven Months Rent for my building on your lot at 3409 N. St. Mary. This does not include Work Benches or spray Porchies or tables or Loose lumber this credit of Rent is to begin after all other accounts are paid in full by cash or Rent Receipts this is as agreed by us on Nov. 3rd.
“Elvin Butler.”

Appellant emphatically denied receiving appellee’s letter, last above quoted.

It seems perfectly obvious that this correspondence, standing alone, does not constitute a contract, for, even if appellant’s letter to appellee can be construed into a definite offer, which is at least doubtful, appellee’s reply certainly does not constitute an unconditional acceptance of that offer, since by its own terms it is made expressly subject to apparently material and substantial exceptions, or conditions. This correspondence is not .aided by parol testimony, for the parties had reached no prior oral agreement and did not thereafter discuss among themselves the matters in controversy. There was no further correspondence, except that, according to appellant’s testimony, he wrote appellee a few days later, offering the latter $50 to vacate the premises, and in the absence of further negotiations, instituted distress proceedings against appellee, which were enjoined in the present action. The record is quite barren of any evidence that the parties reached any sort of oral agreement, either before or after the correspondence, and the judgment must be reversed on that account, if for no other.

This action is one in equity to restrain appellant from prosecuting a pending distress proceeding to oust appellee from rented premises. There is no allegation or evidence that appellant is insolvent, or that appellee has no adequate remedy at law to protect him against the alleged wrongs he complains of. In short, there is nothing in the record to warrant an injunction restraining appellant from pursuing the legal remedies provided by statute for the settlement of controversies between landlord and tenant, as appellant was doing when enjoined therefrom. If he elects and wrongfully pursues such remedy, and ap-pellee should be thereby injured, the law affords the latter ample means of redress, without the necessity of resort to equity.

Appellants’ motion for rehearing will be granted, the judgment reversed, the injunction dissolved, and the cause remanded for further proceedings not inconsistent with this opinion.


author: BLAIR, J.

text:
    WEST v. LUTTRELL et al.
    No. 7525.
    Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1931.
    Rehearing Denied Feb. 11, 1931.
    Gibbs & Lewis, of San Angelo, for appellant.
    J. A. Thomas, Louis D. Gayer, and Lloyd Kerr, all of San Angelo, for appellees.
   BLAIR, J.

Appellant, the owner of the only newspaper published in the town of Bronte, instituted this proceeding against appellees for a writ of mandamus to compel the city council of said town of Bronte to publish in his paper its annual financial statement as required by article 1023, Rev. St., to publish all ordinances enacted as required by article 1013, and to require the city council to contract with him for his paper to be the official paper of said town of Bronte, as provided in article 1025. The trial court sustained ap-pellees’ general demurrer to appellant’s petition, and, upon his refusal to amend dismissed the proceedings; hence this appeal.

The judgment of the trial court is sustained because appellant’s petition for the writ of mandamus was not verified. The statutes authorizing the issuance of writs of mandamus do not provide that the petition therefor shall be verified, but the Supreme Court has so held. Shirley v. Conner, 98 Tex. 63, 80 S. W. 984, 81 S. W. 284; Sansom v. Mercer, 68 Tex. 494, 5 S. W. 62, 2 Am. St. Rep. 505; Orange Grocery Co. v. Leverett (Tex. Civ. App.) 282 S. W. 625; articles 1733-1735, 1914, and 1957, R. S. 1925.

The petition also violates the rule that greater certainty of pleading is required in mandamus proceedings than in ordinary causes, ,in the following particulars:

(a) It does not allege the pendency of any ordinance for passage which article T013 required to he published.

(b) It does not allege that relator had complied with article 29a, which provides that, “before any newspaper * * * shall be authorized to publish legal advertising of any character, such newspaper shall file with such officer, agency or person charged with the duty of so inserting such publication, a schedule or rates then charged by such newspaper for classified advertising,” etc. Doeppenschmidt v. City of New Braunfels (Tex. Civ. App.) 289 S. W. 425.

(e) The petition does not allege the date of the end of the municipal year. Article 1023 requires that the financial statement of a town shall he published “at least ten days before the expiration of each municipal year.” The petition therefore fails to disclose whether it was the proper time for the publication of any annual statement of the town of Bronte, or whether the time for publication of any annual statement had expired when the petition was filed. It is settled law that “a writ of mandamus will not issue if for any reason it would be useless or unavailing.” Holcombe v. Fowler, 118 Tex. 42, 9 S.W.(2d) 1028. And the petition also fails for want of certainty as to any breach of duty on the part of appellees, because it does not appear therefrom when any annual statement should have been published. Harbert v. Owens (Tex. Civ. App.) 26 S.W.(2d) 670, 671.

The judgment of the trial court will be affirmed.

Affirmed.


author: WILLSON, C. J.

text:
    HOLCOMB v. NETTLETON et al.
    No. 3936.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 15, 1931.
    Long & Wortham and Tom L. Beauchamp, all of Paris, for appellant.
    W. F. Moore, of Paris, for appellees.
   WILLSON, C. J.

(after stating the case ¿s above).

It appears from the statement above that the title to -the land was in appellee Mrs. Martha E. Nettleton, as determined by the trial court, unless it passed to the Scottish American Mortgage Company by force of the deed to it from W. J. Yacca, acting as a substitute trustee in the place and stead of T. M. Scott. The disposition to be made of the appeal in the view we take of the record therefore depends upon the answer made to the question as to whether the trust deed to.Scott authorized the Scottish American Mortgage Company, as the holder of the notes, to act by its attorney in fact in appointing a substitute trustee.

It was held by the Supreme Court in Michael v. Crawford, 108 Tex. 352, 193 S. W. 1070, that “authority [quoting from the syllabus] to make a substitution of trustees without other formality than an appointment in writing requires the appointment to be made by the holder of the note, and not his agent.”

A difference between the case referred to and this one lies in the fact that in that one the substitute trustee was appointed by the attorney in fact of a natural person, who was owner and holder of the note, while in the instant case the substitute trustee was appointed by the attorney in fact of a corporation. Because of that difference, appellant insists the holding of the Supreme Court in the case referred to should not be treated as authority for overruling his contention that the Scottish American Mortgage Company acted within power conferred by the trust deed when it undertook by its agent to appoint a substitute trustee.

That the difference is not a material one was in effect determined by Supreme Court of Mississippi in Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285; Watson v. Perkins, 88 Miss. 64, 40 So. 643, and Scottish American Mortgage Co. v. Butler, 99 Miss. 56, 54 So. 666, 668, Ann. Cas. 1913C, 1236, construing provisions in deeds of trust like these •in the trust deed in the instant case, and holding that a corporation acting by an attorney in fact could not appoint a substitute trustee. In the case last cited, the Scottish American Mortgage Company, plaintiff in the trial court and appellant on the appeal, acting by its attorney in fact, had appointed one Stinson as a substitute trustee. In overruling a contention similar to the one urged here, the court, on the authority of the ruling in Allen v. Alliance Trust Co., supra, said (quoting): “The substitution of Stinson, by the attorney in fact for appellant [a corporation], was void, and the sale by such substituted trustee was likewise void, and appellant therefore got no title by virtue of its purchase at such sale and conveyance by the substituted trustee.” The reasons for the holdings in the cases cited are stated in the opinions disposing of the appeals, and need not.be repeated here. This court, of course, is bound by the holding in Michael v. Crawford, and sees no. satisfactory reason for dissenting from the holdings of the court in the Mississippi cases cited.

Appellant insists the evidence made an issue for the jury as to whether appellees were estopped from claiming title to the land as against him, and therefore that it was error to instruct the jury to return a verdict in their favor. We have read and considered the evidence referred to, and agree with the trial court it did not make such an issue.

There is, we think, no error in the judgment. Therefore it is affirmed.


author: SELLERS, J.

text:
    STATE LINE OIL & GAS CO., Inc., v. THOMAS et ux.
    No. 3943.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 26, 1931.

    Rehearing Denied Feb. 5, 1931.
    Vinson, Elkins, Sweeton & Weems, of Houston, and Davidson, Blalock & Blalock, of Marshall, for appellant.
    Beard- & Abney, of Marshall, for appellees.
   SELLERS, J.

Appellees brought this suit against appellant in district court of Harrison county on June 7, 1929, to recover damages for the failure of appellant to use due diligence in drilling offset wells to those on adjacent lands to prevent drainage from the premises of ap-pellees then held by appellant under a certain mineral lease. The case was tried to a jury upon special issues, and upon the verdict judgment was entered for appellees for the sum of $760, and appellant brings this appeal.

It is well-settled law in Texas, that, to establish a cause of action such as here relied on, it must affirmatively appear both from the pleadings and evidence (1) that appellant could have drilled a well or wells on the land in controversy, producing gas at a profit to itself. At the time alleged, that is, after deducting the cost of drilling such a well, maintaining the same, and marketing the gas therefrom, the appellant would have received a reasonable profit; (2) that appellant, in the exercise of ordinary care, should have drilled a well or wells on said land at the time alleged with reasonable expectation of receiving a reasonable profit from the gas produced after deducting the expenses incident to the drilling, development, and marketing of the products.

Under various assignments, it is insisted that the preponderance of evidence was in favor of the defendant, and that such evidence was insufficient to authorize the court to submit the case to the jury, and that the court erred in refusing to give the appellant’s requested charge to return a verdict in favor of the defendant.

The evidence in this case discloses that the Azzie Thomas tract of land, which is covered by the mineral lease in question, is located in Harrison county, Tex., in or near what is known as the “Waskon Gas Field.” It is shown from the evidence that the first well in this field was discovered some time in 1923 or 1924, and that the field was practically depleted about the first of 1928. There were four sands in this field from which gas was drawn, namely, the Nacatoeh sand, which was a shallow sand discovered at about 1,000 feet; the Blossom sand, which was discovered at about 1,900 feet; another sand was at 2,300 feet; and still another at around 2,800 feet. The great majority of the wells of this field were drilled to the Nacatoeh and the Blossom sands. The average cost of drilling a well to the Nacatoeh sand was shown to be about $4,000 and to the Blossom sand around $8,000.

The record discloses there were never any wells drilled in this field south of the Azzie Thomas tract of land, and that there were never any wells drilled to the east of said tract, except one which was drilled some mile and one-half to the east, and which proved to be a “dry hole.” The main body of the wells drilled in this field lies to the north,' northwest, and west of the Azzie Thomas tract. The closest well in proximity to the Azzie Thomas tract is what is known as the Ferguson-Abney well No. 1, which is about 900 feet from the northwest corner of the Az-zie Thomas tract, and never did produce sufficient gas to pay for the drilling of same. The next nearest well is just west of the Ferguson-Abney well, and is known as the Ferguson-Abercrombie No. 1. This well is about 1,400 feet from the Azzie Thomas tract, and is now “dead,” and never did produce sufficient gas to pay for the drilling. There is another well just south of the two wells above mentioned known as the Morris-Abercrombie well, which is about 1,500 feet from the Thomas tract; this well is nqw “dead,” and never did pay for the cost of drilling. There is a well that is known as the H. C. Morris-O. B. Hickman No. 1, exact distance of which. is not disclosed by the record, but is farther from the Thomas tract than any of the wells mentioned, and is located northwest of the northwest corner of said Thomas tract. This well barely paid the cost of drilling. Immediately north of the northeast corner of the Thomas tract, and about the same distance as the H. O. Morris-O. B. Hickman No. 1, are two wells known as the A. C. Scott-Stringfellow No. 1, and the A. G. Scott-Stringfellow No. 2. Neither of these wells ever paid for the cost of drilling.

The first witness offered by appelles was E. O. Easter, who testified that he drilled the wells in closest proximity to the Thomas tract. He stated that he was a driller and not a geologist, and would not undertake to say which way the course of the structure was taking in that part of the field; that practically all he knew about the structure in the two wells he drilled near the Azzie Thomas property was they did not pay out. Another witness called by the appellees, W. F. Parker, testified that he did not know much about the structure in that part of the field in the vicinity of the Azzie Thomas tract, as he did not operate in that part of the field. This witness was not a geologist, but one who had had drilling experience in the Waskom oil field. The witness D. Gorden, who testified for appellant, appears to be the only geologist who testified at all in the ease. He testified that he knew where the Azzie Thomas tract of land was located in the Waskom field, that he had made a study of that particular area in the immediate vicinity of the Azzie Thomas tract, and that it was his opinion as a geologist that that tract, if it had been drilled at any time during the history of the field, would not have produced a sufficient amount of gas to pay the expenses of the drilling.

In Steele v. American Oil Development Co., 80 W. Va. 206, 92 S. E. 410, 411, L. R. A. 1917, p. 975, the Supreme Court of West Virginia states the rule applicable to this character of cases to be:

This suit was instituted to recover damages for injuries claimed by the plaintiffs because of the failure of .the defendant to drill oil wells on lands of the plaintiffs so as to prevent wells drilled on adjacent lands from draining the oil from plaintiffs’ lands and thereby depriving the plaintiffs of the royalties thereon. * * * It ..cannot be doubted that in order to the recovery of damages from a lessee in such a case as this it must appear from the evidence that it is rea'sonably certain that oil from plaintiffs’ lands had been, or is being, drained by ■ wells drilled on other lands. Of course, from the nature of the subject-matter it is impossible to prove this with absolute certainty, , but it is not impossible, nor is it difficult, to ¡prove such a state of circumstances, if they I exist, as would reasonably lead to the conclusion that such was the fact. It would be, not only possible, but easy, to show the character of the sands in which the oil was found on the adjoining lands. It could also be easily shown what wells had been drilled on adjoining lands, how far they were from the lands of the plaintiffs, and how much oil had ■ been produced therefrom. It could also be sbown what area would probably be drained of the oil by a well drilled in the particular sand in which the wells were drilled on the adjoining land, and if such area so probably drained included a part of plaintiffs’ land, it might then be reasonably assumed that those wells on adjoining lands were draining oil from plaintiffs’ lands.

“However, it must be remembered that the ' obligation of the lessee does not require him to drill wells wherever there is a reasonable expectation that some oil may be found, but it must appear that there is a reasonable expectation that the returns to the lessee from the oil which will be produced from the drilling of such a well will at least compensate him for the expense incurred in drilling the well and producing the oil. This cannot be left to conjecture, but must have for its basis some substantial proof. In a case like this it could be shown what would be the cost of drilling a well through the particular sand in which the oil was found on the adjacent lands; what would be the approximate cost of producing and marketing the oil therefrom ; what the production was from wells drilled in close proximity to this land; and it might be reasonably assumed, if wells in close proximity produced sufficient oil to compensate the lessee in drilling them, that a well drilled upon plaintiffs’ land would do likewise. However, in determining this question all of the elements which would have a tendency to influence and guide the judgment of one producing oil must be considered. The fact that wells drilled in close proximity proved to be barren would be a material consideration, ás well as the fact that productive wells were so drilled. In this case it is shown that there are barren wells drilled In close proximity to the plaintiffs’ land at the point at which it is contended defendant should have drilled a well. It is also shown that productive wells were drilled in such close proximity. It is not shown, however, by any satisfactory evidence what would be the cost of drilling a well at the point indicated, nor is it shown, or attempted to be shown, that even* though a well were drilled on plaintiffs’ land to prevent the drainage of oil therefrom, and it produced as much oil as the largest well drilled on the adjoining lands, this would be sufficient to compensate the lessee for the expense of drilling the well, maintaining the same, and marketing the oil therefrom. We cannot assume that this would be the case, particularly when the matter is so easy to be proved. Nor is it shown in this case the extent to which a well pumped and worked as the wells on the lands adjoining the plaintiffs were pumped and worked would drain the oil from plaintiffs’ land. There must be those who are acquainted with the, nature of this sand in that locality, and who could, from their experience, give some reasonable data or information from which it could be determined with reasonable certainty that the wells being operated on adjoining lands were draining plaintiffs’ oil, and the extent thereof. * * *

“It might be shown by those familiar with the production of oil in this sand that a well drilled through it, pumped as these wells were pumped, would, in all probability, drain an area of so many acres, and that a given percentage of this area so drained is the lands of the plaintiffs. If such evidence were introduced, it would perhaps form a basis upon which the jury might determine with some reasonable certainty how much of plaintiffs’ oil had been drained by the wells on adjacent lands.”

When the evidence in this case is measured by the foregoing rule, there can be little doubt'but that the trial court fell into error in refusing to instruct the jury to return a verdict for the defendant.

We are not unmindful of the rule that a judgment must not be reversed on facts when there is any substantial evidence to support it, yet to allow this judgment to stand would be to approve of evidence which amounts to nothing more than speculation.

Eor the reason above set out, the judgment of the trial court is hereby reversed, and judgment entered for appellant.


author: LEVY, J.

text:
    TEXAS & PAC. RY. CO. v. KELLY.

    No. 3871.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 15, 1930.
    Rehearing Denied Dec. 31, 1930.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    S. P. Jones and Franklin Jones, both of Marshall, and J. A., R. Moseley, Jr., of Tex-arkana, for appellee.

      Writ o£ error granted.

   LEVY, J.

(after stating the case as above).

The appellant submits the proposition, as controlling the suit based exclusively upon the Federal Employers’ 'Liability Act (45 US OA §§ 51-59), that the appellee was not injured while engaged in interstate commerce. In support of the proposition, it is pointed out that the evidence shows without dispute that the interlocking system was not in operation or use, and had not been completely put in ' position and place for operation and use as an 'instrumentality in interstate commerce, but the switches and appurtenant signal lights at the crossing were, when the appellee was injured, being operated by hand the same as before. The main purpose of this interlocking system of signals was, as fully shown, to take the place and be the substitute of the hand-operated switches then in use. The switches and appurtenant signal lights were not designed to be used and operated severally, but they were to constitute a complete interrelated system of operation of trains over the already laid track and roadbed. The rods, wires, and plates which constituted a working part of the new system were to be, and mostly were, attached to, and connected with, the rails then in the existing track. . There was not to be any change 'in the roadbed, track, or rails in order to have the new mechanism tied to it for operation. In such' situation, it is believed that the system or plant must be regarded as intended as a substitution of existing switch facilities and signal system in the nature of purely track equipment of the already laid and existing railway track. The factual elements must be considered that the rails in the existing track were to be utilized in connection with the new signal system, and such rails also entered into, and formed a part of, the existing roadbed. Therefore the fact that the locking mechanism, which was an inseparable part of the system being installed for the safe and efficient operation of trains over the tracks, was to be and mostly was tied to and connected with the rails of the existing roadbed, would operate to classify the work being done at the time of the injury as work done on an instrumentality actually used in interstate commerce at that time, although the interlocking system of signals had not been completely put in position and place for operation. The work was certainly in close and not remote relation to interstate traffic. The tracks and rails and roadbed already laid were, as shown, actually used and being used at- the time of the injury daily by many trains in interstate business, carrying through passengers and freight. The authorities point to the conclusion that the plaintiff under the facts stated was entitled to recover under the federal act. Pederson v. Railway, 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Kinzell v. Rwy., 250 U. S. 130, 39 S. Ct. 412, 63 L. Ed. 893; Philadelphia, B. & W. Rwy. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Oregon Short Line Rwy. v. Gubler (C. C. A.) 9 F.(2d) 494 (certiorari denied 273 U. S. 709, 47 S. Ct. 100, 71 L. Ed. 851); Central Rwy. Co. of New Jersey v. Monahan (C. C. A.) 11 F.(2d) 212.

The appellant contends that it is not liable because (1) there was no negligence, and (2) there was assumption of risk. It is believed the questions so presented became one of fact for the jury’s determination. There is, we think, evidence tending to show and authorizing the inference of negligence upon the grounds submitted to the jury in the court’s charge. The work the appellee was. engaged in was work more or less of a hazardous character, as it required him to be upon the hoisted block, and in undertaking to do the work he assumed the risk incident to the employment in which he was engaged, but he did not assume dangers resulting from •the negligence of others. Therefore neither point made in the assignment of error can be sustained as a pure matter of law.

The question of whether or not the appellee was engaged in interstate commerce at the time of his injury became in the record one for decision by the court and not the jury, and therefore any charge given to the jury, or finding by the jury, becomes immaterial of consideration in the appeal, because injury could not be legally predicated thereupon.

We have given full consideration of all the assignments of errór presented, and think they should be overruled.

The judgment is affirmed.