text:
    STANDARD ACC. INS. CO. v. WILLIAMS.
    (No. 1023-5199.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.

      Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Marvin Simpson, Leo Brewster, and Frank Rawlings, all of Fort Worth, for defendant in error.
   SPEER, J.

This is a'workmen’s compensation case in which defendant in error recovered a lump sum for. injuries found to have resulted in total permanent disability. The judgment was affirmed by the Court of Civil Appeals. 4 S.W.(2d) 1023.

But two questions need to be decided. The first is whether or not there is any evidence to authorize the submission of the issue of total permanent disability or to support a finding of the jury that there was such disability.

The evidence at this point is not voluminous; neither is it very satisfactory. We have no power to pass upon the sufficiency to convince us, but our jurisdiction is limited to whether or not there is any competent evidence from which the jury might reasonably find such permanent total disability to exist.

It is not necessary to set forth evidence as to the nature of the injuries further than to say they were caused by a fall resulting' primarily in a severe injury to the left arm, and the pertinency of further inquiry arises out of the rule that if the injury is alone confined to the arm — a specific member — the statute itself prescribes the measure of damage, and a recovery cannot be had in.excess of that amount, even though the effect of the specific injury totally and permanently incapacitates the employee for his accustomed work. If the injury does not extend beyond the member, the loss is definitely and arbitrarily fixed so as not to exceed the complete loss of that member under the statutory scheme of compensation. But we take the rule to be, if an injury to a specific member does not stop with the injury to or loss of that member, but for any reason continues as an injury affecting the body to such extent as to result in permanent or partial total disability, a recovery may be had therefor, even exceeding the statutory compensation for the complete loss of that member. In such a case, the injury is general and not confined to the specific member.

The plaintiff testified: “I have been under the care of a physician the last few months all the time; under the care of Dr. Anderson and Dr. Johnson. I do not know what it is they give me. It is something to ease me so that I can sleep. It hurts in here, this leader drawing in the elbow, right here. It hurts just like a rheumatic pain. * * * Since the date of my injury I have not earned any money at all — practically nothing at all. I have not been.able to do anything. I have attempted to work since I got hurt. Mr. Underhill told me he would get me a job, watching, night watching, and I undertook to do that. I just got $12.00 a week and I could not dp any good at it and my arm hurt so bad working at night I had to get out.”

A doctor testified for the plaintiff: “It has been over a year and it doesn’t get better. The condition I have described here would lessen the sense of touch. ⅜ * * It seems about a year since I first examined his arm and shoulder. I couldn’t say for sure. I think the arm is in about the same condition as it was when I first saw it, possibly a little worse. * * * From the condition I fipd that arm in, my opinion is- he will suffer pain.”

From this testimony we cannot say that reasonable minds could not find that the plaintiff’s injuries were permanent and totally disabled bim from performing bis customary work as a painter and paper banger. There was therefore no error in submitting the issue, neither was there error in refusing to set aside the verdict thereon.

The remaining assignments of error complain that the Court of Civil Appeals erred in refusing to consider various assignments in that court, complaining of improper arguments of counsel for the plaintiff. The reason given by the Court of Civil Appeals for refusing to consider the question is that “the assignment and the proposition must specifically refer to a bill of exception and the bill itself must set out sufficient circumstances and facts from which this court may determine that the trial court has erred,” in which respects the assignments were deficient.

This reason cannot be sustained in its entirety. There is nothing in the statute or the rules that would require the ássignment or the proposition specifically to refer to a bill of exception. It is enough that the assignment as such points out clearly and definitely the particular ruling complained of— this for the purpose of identification. It is sufficient that the proposition as such announce a proposition of law germane to the assignment, and finally the statement must support the proposition and contain the bill of exception or a sufficient excerpt therefrom, where the -ruling is preserved by a bill of exception, setting out, as said by.the Court of Civil Appeals, sufficient circumstances and facts from which the court may determine that the trial court has erred. We have therefore looked to plaintiff in error’s brief in the Court of Civil Appeals, from which we find that the court was abundantly justified for other reasons in disregarding all propositions except the fourteenth, and we have considered that. -That proposition was based upon bills of exception Nos. 36 and 38, complaining of intemperate and inflammatory language of counsel for the plaintiff.

By bill No. 36, it appears that counsel for the plaintiff, in his concluding argument, said: “You gentlemen were prompted to feel of his arm, to test it out, and they exploded like a fire cracker when I suggested that. They exploded like a fire cracker when I suggested that. Why didn’t they want you to feel of it? If they knew he was not hurt, why didn’t they want you to find it out?” To which the defendant at the time excepted, but the grounds of the objection are not stated. The court appended to this bill the following qualification: “During the trial of the cause one of the jurors requested counsel for plaintiff, the court permitting, for permission to examine plaintiff’s arm, and at the time they made tíre request counsel for the plaintiff stated to the court that the plaintiff had no objection. The court did permit said jurors to examine plaintiff’s arm but specifically instructed said jurors and the other ten jurors not to, in any manner or way, discuss or allude to said examination in the consideration of the case; or express their opinion as to what they thought about plaintiff’s injuries as a result of said examination; and the court was of the opinion that under the circumstances the argument made by counsel as complained of in the bill of exceptions was not improper.” '

The bill shows no error. It appears to be undisputed that two of the jurors did feel of the plaintiff’s arm. His counsel described the effect of his acquiescence to be that “they,” evidently referring to the representatives of the defendant or its attorneys, “exploded like a fire cracker.” The bill does not show what the reaction of the • attorneys for defendant was further than they “excepted.” Of course, the language of counsel for plaintiff was highly figurative and literally “inflammatory.” Perhaps he was in error and the pyrotechnics was on his side of the bar, Nevertheless, we see nothing out of the ordinary in this language that was calculated improperly to prejudice the rights of plaintiff in error.

The thirty-eighth bill of exception has even less merit. By, that bill it appears counsel for plaintiff, in his concluding argument,'said to the jury: “The man is here with his arm and has submitted it to examination, not only to him but to you.” The defendant again “excepted,” but the grounds of its objection were not stated. From the undisputed facts, it appears the comment was entirely within counsel’s right, for the plaintiff had submitted to examination by doctors who testified for the defendant, and to jurors, as explained, by the court’s qualification above.

We recommend that the judgments of both courts be affirmed.

CURETON, O. X Judgments of the district court and Court of Civil Appeals affirmed.'


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. EZELL.
    (No. 1025-5203.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    Eskridge & Williams, of San Antonio, for plaintiff in error.
    Gordon Gibson, of Laredo, for defendant in error.
   SPEER, J.

The case is thus fully stated by the Court of Civil Appeals:

“R. A. Ezell, Jr., was an employee of Hel-denfels Bros, who were operating an industry in the town of Rockport, in Aransas county. The industrial concern was a ‘subscriber’ under the Texas Workmen’s Compensation Law (Rev. St. 1925, arts. 8306-8309), and, as such, was insured by the Texas Employers’ Insurance Association. Ezell, the employee, was covered by this insurance, and was injured in the course of' that employment on April 7, 1928. In due season he filed a claim for compensation with the State Industrial Accident Board, which awarded him compensation in the form of weekly payments at the rate of §17.31 per week for not to exceed.401 weeks, beginning April 15, 1926, the insurance association, against whom the award was made, made no timely complaint therein, and the award became final and binding upon the association, as provided in section 5, art. 8307, R. S. 1925.
“The insurance association failed and refused to make the accruing weekly payments decreed in’ the award, whereupon Ezell filed suit in the district court of Aransas county to mature the award, aggregating $6,943.32, and for judgment enforcing same, as provided in section 5a, art. 8307. That suit was instituted in vacation, on August 19,1926, and on the same day the insurance association appeared and filed answer, consisting of general demurrer and general denial. Less than a week later, on August 25, an agreed judgment was entered in that suit, as follows:
“ ‘Be it remembered that on this day, the 25th day of August, A. D. 1926, in vacation, and upon agreement of counsel, came' on to be hoard the above numbered and entitled cause, and no jury having been demanded, and both parties having appeared by counsel and announced ready for trial, and in open court represented to the court that all matters in controversy herein had been settled by agreement, which was substantially as follows:
“ ‘That the final award of the Industrial Accident Board of the state of Texas made and entered on July 13th, A. D. 1926, in cause L-12872, entitled Robert A. Ezell, Jr., Employee, v. Heldenfels Bros., Employers, and Texas Employers’ Insurance Association, as Insurers, should be set aside, and that judgment should be entered in this suit in favor of the plaintiff, Robert A. Ezell, Jr., against the defendant Texas Employers’ Insurance Association, for the sum of $3,000, and costs of this court, which said agreement is in all things ratified and approved by this court.
“ ‘Wherefore, in consideration of the premises, it is hereby ordered, adjudged, and decreed that in cause L-12872, entitled Robert A. Ezell, Jr., Employee,' v. Heldenfels Bros., Employers, and Texas Employers’ Insurance Association, Insurers, pending before the Industrial Accident Board of the state of Texas, and in which an award of said board was duly entered as of date July 13, A. D. 1926, in favor of Robert A. Ezell, Jr., for compensation, tlie same be, and the-same is hereby, set aside and held for naught, and of no further force or effect.
“ ‘It is further ordered, adjudged, and decreed that the plaintiff, Robert A. Ezell, Jr., do have and recover of and from the Texas Employers’ Insurance Association the sum of $3,000 in full satisfaction of all claims and causes of action against the Texas Employers’ Insurance Association or Heldenfels Bros, by reason of certain personal injuries received by the said plaintiff, Robert A. Ezell, Jr., while in the course of his employment for Heldenfels Bros., at Rockport, Tex., on or about the 6th day of April, A. D. 1926, said sum of $3,000 having been paid by the Texas Employers’ Insurance Association in full satisfaction of all claims for compensation, damages, liabilities, interest, penalties, and attorney’s fees.
“ ‘Said sum of $3,000 having already been paid the plaintiff, Robert A. Ezell, Jr., no execution will issue, and this judgment is declared paid and satisfied.
“ ‘The defendant, Texas Employers’ Insurance Association, is to pay the court costs, for which the officers of this court may have their execution,’
“Nine months later Ezell instituted the present suit, in the same court, to set aside the judgment rendered in the former suit, contending that said judgment was void. From a judgment denying recovery to him, Ezell has appealed.”

The Court of Civil Appeals reversed and remanded the cause, holding the judgment of August 25th void. 5 S.W.(2d) 594.

“If,” as said by the. Court of Civil Appeals, “the court was without jurisdiction to render the judgment now in question, that judgment is void, and may be set aside' by direct attack, as is sought to be done in this action.” That court may have as well added, “or be collaterally attacked wherever involved.”

There is a distinction between jurisdiction as such and the exercise of jurisdiction. Jurisdiction, broadly stated, means the power to hear and determine. Jurisdiction, therefore, includes the power to determine rightfully or wrongfully. It would not be logical to say that jurisdiction attached only where the decision was right. It can make no difference how erroneous the decision may be; if the court has jurisdiction of the parties and subject-matter, its determination of the controversy is not void, and it can make no difference that the error of decision is apparent from the face of the record. Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876; Evans v. McKay (Tex. Civ. App.) 212 S. W. 680; 33 C. J. “Judgments,” § 39.

There is no question but that the district court, in that proceeding culminating in the judgment of August 25th, had full jurisdiction of the parties. The subject-matter of the suit was the statutory right in Ezell to sue upon the order of the board “to collect the full amount” of the weekly or monthly payments awarded, “together with 12% penalties and attorneys’ fees.” Rev. Civ. Stat. art. 8307, § oa. Now the matter in suit being the right of the plaintiff to collect the aggregate of the weekly payments awarded, plus the attorney’s fee, any decision of the court that finally determines that right is the exercise of a proper jurisdiction. For a judgment awarding the full sum claimed, or one awarding any lesser amount, or one finding for tho defendant, would be instances of the exercise of that jurisdiction, even though, under the facts in evidence, the particular decision should be erroneous.

The judgment is not void for another reason. Undoubtedly, the court had jurisdiction of the parties-and over the cause of action asserted. There is nothing in the compensation statutes, or the law generally as to that, to prevent the parties from making any compromise and settlement of the suit they may choose to make. Undoubtedly the subject-matter of the suit was sufficient consideration for an agreed compromise, and there is no contention that the agreement was brought about by fraud, mutual mistake, or is otherwise subject to equitable attack. The jurisdiction of the court to determine the case at all includes the power to determine it finally upon agreement of the parties. This is the general rule, and we know of no reason why it should not apply to any and all cases where the parties are competent to contract.

The judgment of the Court of Civil Appeals reversing that of the trial court is erroneous for yet another reason. Where one invokes,the jurisdiction of a court and recovers judgment in accordance therewith, he will not be heard thereafter to say such court had no jurisdiction and that its award to him was therefore void. Such course is condemned by the highest considerations of public policy. He is estopped to make such plea, and that estoppel was duly pleaded in this case and impliedly sustained by the trial court if such implications be necessary to sustain his judgment. See Spence v. State Nat. Bank (Tex. Com. App.) 5 S.W.(2d) 754.

We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and- that of the trial court be affirmed.

CURETON, C. J. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J.

text:
    MAGNOLIA PETROLEUM CO. v. CONNELLEE et al.
    (Motion No. 8331; No. 886-4548.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    For original opinion, see 11 S.W.(2d) 158, which reversed judgment of the Court of Civil Appeals in 279 S. W. 597.
    W. H. Francis, A. S. Hardwicke, and Wal-ace Hawkins, all of Dallas, and Conner & Mc-Rae, of Eastland, for plaintiff! in error.
    Burkett, Orr & McCarty, of Eastland, for defendants in error.
   LEDDY, J.

Defendants in error insist it appears from the evidence that plaintiff in error used what is known as the “vacuum process” in producing oil from wells on the leased premises, with the result that there was taken a portion of the one-eighth of the oil due them under the terms of the lease, and that in any event they are entitled to recover the value of the oil thus taken and manufactured into gasoline.

Defendants in error’s petition contained no specific allegation as to a loss of a portion of their oil because of the use of the vacuum process. It was alleged in general terms, however, that plaintiff in error had taken the production from wells drilled on the leased premises and manufactured same into gasoline. Assuming that such allegation was sufficient ,to authorize ja recovery for a portion of the one-eight of ‘ the oil separated by the vacuum process and manufactured into gasoline, there is no basis for the rendition of a judgment in favor of defendants in-error on this issue, for the reason the record discloses no finding.by the jury determining the amount of loss of the one-eighth of the oil occasioned by the use of such process.

Defendants in error were not entitled to recover upon any of the allegations made in their petition, unless it should be the one alleging that production from wells on the leased premises was manufactured into gasoline. If the use of the vacuum process can be made the basis of a cause of action, which is not necessary to be here determined, then it would constitute a complete and independent ground of recovery, and no request having been made for the submission to the jury of the issue thus involved, defendants in error’s right to insist upon a recovery based thereon was waived. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084; Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902.

We have carefully considered the elaborate arguments presented in support of the motion challenging the correctness of the propositions decided in the original opinion, but have not been convinced that the questions involved were improperly determined.

We therefore recommend that the motion for rehearing be overruled.


text:
    CAMDEN FIRE INS. ASS’N v. ECKEL et al.
    (No. 1028-5209.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.

      Andrews, Streetman, Logue & Mobley and J. R. Andrews, all of Houston, for plaintiff in error.
    Thompson, Knight, Baker & Harris, of Dallas, for defendants in error.
   SPEER, J.

Frank Eckel carried certain insurance policies upon a store, house, stock, fixtures, etc., situated near Hempstead, in Waller county. The property burned, and in adjusting his losses he executed to the Northern Assurance Company the following instrument:

“I, Frank Eckel, hereby assign and transfer to the Northern Assurance Company any and all claim I may have against any company represented by Cravens, Dargan & Roberts, of Houston, Texas, covering certain of my property and damages by fire, on March 4, 1922, as security for advances made me by the Northern Assurance Company on this day, on account of such loss, to be repaid to the Northern Assurance Company only out of the recovery, if any, as against the company or companies represented by Cravens, Dargan & Robertá, this agreement not being an agreement on my part to pay any sum, but that the Northern Assurance Company shall have any and all recovery that they may make against any company or companies represented by Cravens, Dargan & Roberts, to repay the advance which they have made me, and any expenses to which they may be put to affect any such recovery, it being understood that while recovery can be attempted in my name, and I will assist to the best of my ability in the same, ■ that I shall not be charged with any expense in connection therewith, but all of such expenses shall be borne by the Northern.”

On January 27, 1923, this suit was filed in the name of Frank Eckel against the Camden Fire Insurance Association upon a policy held by Eckel at the time of the fire. The Camden Company, induced apparently by an affidavit by Eckel disclaiming any interest in or authority for the suit, filed a motion under the statute (article 320) challenging the authority of the attorneys to institute or prosecute the suit. Nothing appears to have come of this motion until October 12, 1926, when a supplemental petition was filed as follows: “Now comes plaintiff and Northern Assurance Company, a corporation, appearing herein in the name and through the plaintiff, Frank Eckel, and by way of supplemental petition,” etc.

On the same day the defendant filed its motion to dismiss the cause brought in the name of Eckel, and this motion was granted, and the causé as to Eckel was dismissed upon a finding by the court that said suit was filed without áuthority.- The court thereupon also sustained the defendant’s exception to the petition of Northern Assurance Company interposing the defense of four years’ limitations and dismissed the cause as to that company.

Before these orders were made, his attention having been called to his assignment in favor of the Northern Assurance Company, Eckel in open court acquiesced in the institution and further maintenance of the suit in his name, and upon the court’s dismissing it he excepted and prosecuted a writ of error to the Court of Civil Appeals. The Northern Assurance Company likewise prosecuted its writ of error, and the Court of Civil Appeals reversed and remanded the cause. 5 S.W.(2d) 849.

The Court of Civil Appeals refers to the Northern Assurance Company as inter-vener, but this is inapt. The Northern Assurance Company did not seek to enter the ease upon any principle of intervention, but rather it has, at all times, proceeded on the theory that the suit, when and as instituted originally, was its suit, and in our opinion this is the correct conception of the situation.

It may be conceded, if after, the assignment above set out Eckel for his own account had instituted the suit without the knowledge or acquiescence of the Northern Assurance Company, it would) not have been that company’s suit, so as to toll the statute of limitations. A judgment rendered in such a case might not have been binding upon it. But the undisputed facts here show that Eckel did not institute the suit, that it was in fact instituted by an attorney representing the Northern Assurance Company, and there is no reasonable doubt that this course was pursued because of the express authority given in the assignment already quoted. That being true, it was the Northern Assurance Company’s suit, and not Eckel’s at all. He was a mere use plaintiff. In such a case, the legal title appearing to be in him, it is not required that the petition by the use plaintiff should show upon its face that it is brought for the benefit of another. If in truth the real beneficial owner institutes the suit in that form, or even if he knows that it has been instituted in that form, and acquiesces therein, any judgment rendered will be res adjudicata as to him, upon the ground that he was in truth the party plaintiff — that it was his suit. Jackson v. West, 22 Tex. Civ. App. 483, 54 S. W. 297 (writ refused); Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Black on Judgments (2d Ed.) § 538.

In such a case the suit may proceed in the name of the use plaintiff or the real plaintiff may be substituted. It is at all times the same cause of action, and. a substitution of the real plaintiff is not the institution of a new suit.

Besides, even under the statute invoked by the defendant in the tidal court (article 320) that court had no authority to dismiss the suit as originally brought, unless it appeared that the attorneys had no sufficient authority from the plaintiff to institute or prosecute the same. Here it indisputably appears upon the hearing of that motion that 'the attorneys did have sufficient authority from the plaintiff to institute and prosecute the same; so that it was error to dismiss at all.

We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


text:
    BEACON LUMBER CO. v. BROWN.
    (No. 1029-5211.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    B. B. Thomson and Thomson, Dilworth & Marshall, all of San Antonio, for plaintiff in error.
    Bell & Bell, of San Antonio, for defendant in error.
   LEDDY, J.

The record in this case properly presents the question whether article 3992 of the Revised Civil Statutes 1925 is vio-lative of article 14, § 1, of the Constitution of the United States, and article 1, §§ 13 and 19, of the Constitution of the State of Texas, because it attempts to allow an appeal to the Court of Civil Appeals in forcible detainer suits to an unsuccessful defendant, but denies such appeal to an unsuccessful plaintiff.

The statute in question reads as follows: “The judgment of the county court finally disposing of the cause shall be conclusive of the litigation, and no further appeal shall be allowed, except where the judgment shall be for damages in an amount exceeding $100.”

The law is settled that an appeal is not essential to due process of law but Is a matter of grace. Luckenbach S. S. Co. v. U. S., 272 U. S. 533, 47 S. Ct. 188, 71 L. Ed. 394.

Plaintiff in error does not controvert this proposition, but insists that, in any case where the Legislature grants such right, it must do so to both parties alike. It is contended that the statute in question grants the right of appeal to an unsuccessful defendant and does not give a similar right to an unsuccessful plaintiff in such cases, and therefore it denies to the latter the equal protection of the law. It may be conceded that, if the Legislature in any particular class of cases should provide for an appeal by one party and deny the right to the adversary party, such legislation would contravene the equality clause of both State and Federal Constitutions.

We do not, however, construe this statute to have the effect claimed. It will be noted that it does not provide that the defendant may appeal in case the judgment in the county court exceeds the sum of $100, but the language is that “no further appeal shall be allowed, except where the judgment shall be for damages in an amount exceeding $100.-00.” Under this provision either party may appeal when the judgment exceeds the stipulated amount, and neither may appeal unless it does. So far as the right of appeal is concerned, each party, plaintiff and defendant, are placed upon terms of equality. While the statute denies the plaintiff the right of appeal when he fails to' recover possession of the property sued for, at the same time it denies the defendant an appeal when the plaintiff recovers possession of the property involved and does not recover rents in excess of $100. Even if the right thus given may appear to be more beneficial to the defendant than to the plaintiff, such fact would not operate to deny the equal, protection of the law, within the meaning of the constitutional guaranty. It has often been determined that a statute does not deny equal protection merely because certain persons may derive special benefits, where all persons within its purview are subject to like conditions. Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923; Stone v. City of Jefferson, 317 Mo. 1, 293 S. W. 780, 52 A. L. R. 879; Virginia Development Co. v. Crozer Iron Co., 90 Va. 126, 17 S. E. 806, 44 Am. St. Rep. 893.

We think it was a matter of legislative discretion in fixing some particular point at which litigation of this nature should become final. It gave the parties in this particular litigation an unlimited right to appeal from the justice to the county court. We are not prepared to say that its limitation upon the right of a further appeal violates any constitutional right. While the method provided by the Legislature may not operate as beneficially to an unsuccessful plaintiff as to an unsuccessful defendant, the right itself applies to both alike. In this connection, we think the language used by the Supreme Court of Mississippi; in Dismukes v. Stokes, 41 Miss. 430 is pertinent. In discussing the power of the Legislature pertaining to limitations upon the right of appeal, it was said: “Nothing appears to be more clearly within the legislative power over matters pertaining to public policy, than the question, in what cases and to what courts shall a party be entitled to an appeal or a writ of error? In such cases the question to be settled is, whether or not it would best promote the purposes of justice, and the peace and quiet of the community, to allow a matter' once or twice regularly adjudicated in the courts to be further litigated in other courts; and this question depends not upon matters of legal right, but upon considerations of public policy. It turns upon the grave question, at what point should litigation in particular cases cease, and what, rule, in relation to the particular casé, would best promote the public good? When the legislature determines this question and fixes the rule in any particular case, the question is thereby settled.”

It seems that the Legislature in this particular class of cases adjudged it in the interest of a sound public policy that the right of appeal should be conditioned, not upon the amount in controversy, but upon the amount of judgment rendered in the case, and, as it granted this right to the plaintiff and the defendant alike, it does not operate to deny plaintiff in error the equal protection of the law; the wisdom of such legislation being for the Legislature and not for the courts.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


text:
    ST. LOUIS, B. & M. RY. CO. v. COLE et al.

    (No. 1026-5205.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    E. H. Crenshaw, Jr., of Kingsville, and Davenport, West & Ransome, of Brownsville, for plaintiff in error.
    E. W. Napier, of Wichita Falls, and Rabel, Napier & Fristoe, of Harlingen, for defendants in error.

      For opinion on rehearing see 16 S.w.(2d) —.

   LEDDY, J.

Defendants in error, the surviving wife and minor children of Charles A. Cole, were awarded a judgment against plaintiff in error for damages, based on findings of (.lie jury in answer to special issues that said Cole’s death resulted from plaintiff in error’s negligence, in causing one of its locomotives to collide with the automobile in which Cole was riding at a point where a public road crossed one of its side tracks.

The principal question urged in this court is that a new trial should have been granted on account of the misconduct of the jury in considering the verdict rendered in this case. The misconduct complained of was in three particulars, viz.: (1) That there ' was an agreement by the jurors that defendants in error were entitled to recover before any of the special issues were answered by the jury; (2)because one of the jurors was personally familiar with the scene of the accident, and gave his opinion thereon; (3) that the jury, in fixing the amount of damages awarded, discussed and considered the probability of an appeal by the railway company.

Upon the hearing of, the motion for new trial, eight of the jurors were interrogated. Six of these testified either that the jury agreed defendants in error were entitled to recover, or at least expressed" an opinion to that effect, before any of the special issues were answered. The foreman and one other juror testified directly and positively that no such discussion was had; that, when they first began their deliberations, they took up the special issues, and answered them one by one without any agreement or expression of ■opinion that defendants in error were entitled to recover.

The trial court; in overruling the motion for new trial, made no express finding on this conflicting evidence; In deference to this ruling, we must indulge the presumption that the court accepted the version given by the jurors who testified that the particular misconduct complained of did not occur. Duerler Mfg. Co. v. Eichhorn, 44 Tex. Civ. App. 638, 99 S. W. 715 (writ refused); Corralitos Co. v. Mackay, 31 Tex. Civ. App. 316, 72 S. W. 624.

It has often been held that the trial court, in considering evidence offered on the hearing of a motion for new trial, has the same latitude in passing on the credibility of the witnesses, and of the weight to be given to their testimony, as a jury has on the original trial. H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Bradley v. Texas & Pacific Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861; Chicago, Rock Island & G. Ry. Co. v. Swann, 60 Tex. Civ. App. 427, 127 S. W. 1164.

With reference to the second ground of misconduct, it was shown that the juror Bor-chelt stated in the jury room during the deliberations that he was familiar with the case, and would prefer that everybody express themselves before his opinion was given, because he was at the scene of the accident immediately after it occurred. In accordance with his suggestion, the other eleven jurors gave their opinion, and he then expressed himself. It was not shown, however, that this juror communicated to any other juror any fact outside of that which had been testified to by the witnesses on the trial of the case. It was also developed upon the hearing of the motion for new trial that, when this particular juror was questioned on his voir dire, he informed the attorney for the railway company he had maintained a creamery for a number of years near the crossing where the accident occurred, and was therefore very familiar with the situation at the crossing, and he also gave him the information that he was at the scene of the accident very quickly after it occurred. It does not appear that any challenge for cause was made against this juror, and the railway company did not see fit to exercise a ■ peremptory challenge to prevent him from becoming a member of the jury.

Plaintiff in error, having accepted the juror with full knowledge of his familiarity with the situation where the accident occurred, must be held to have waived whatever effect such knowledge had upon this particular juror’s verdict.

Not only is there no evidence showing that the information possessed by the juror because of his personal knowledge of the situation was in any way communicated to any other member of the jury during its deliberations, but it was not even shown that the juror himself was in any way influenced or guided by such knowledge in the reaching of his conclusion. Under these circumstances, we do not think the misconduct complained of constitutes such error as to justify us in holding that the trial court abused its discretion in refusing to grant a new trial on account thereof.

With reference to the third ground of misconduct, one of the jurors testified that it was mentioned in the jury room that, if the jury gave too much, the “railway company will appeal it and it will lay in the appeal court for quite a while.” Another juror testified that he thought some one made the remark: “Now, if you won’t make it too big the railway company will pay off and not appeal it.” This seems to be all that occurred with reference to a discussion along this line. It was disclosed that at the time this discussion took place the various jurors favored amounts from $35,000 to $65,000, a majority of the jury favoring a verdict substantially larger than that which was afterwards agreed upon. It seems that this improper argument -was effectively used by jurors who favored a much smaller verdict than the remaining jurors in order to cause such jurors to agree to a smaller amount. These remarks were reasonably calculated to, and it appears did, bring about a reduction in the amount of the verdict that would otherwise have been rendered. While it was undoubtedly improper for the jury to discuss the question as to whether an appeal would be taken in considering the amount of the verdict, yet it' appearing that such action brought about a lesser verdict than would otherwise have been rendered, plaintiff in error is in no position to complain. A verdict of a jury should not be set aside when an error has been committed, if it reasonably appears that such error operated beneficially to the party complaining.

Plaintiff in error further complains of the refusal of the court to submit the definition of negligence requested by it, and also that the definition submitted by the court was erroneous, for the reason that the word “reasonably” was substituted for the word “ordinarily” ; that the charge, instead of saying “a reasonably prudent person,” should have said “an ordinarily prudent person.” It has been repeatedly held in this state that the 'terms “reasonably” and “ordinarily” have substantially the same meaning, and may be used interchangeably in definitions of .negligence and ordinary care. Western Union Tel. Co. v. Vance (Tex. Civ. App.) 151 S. W. 907 (writ refused); St. Louis S. W. Ry. Co. of Texas v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010 (writ refused); T. & N. O. Ry. Co. v. Walker, 58 Tex. Civ. App. 615, 125 S. W. 99 (writ refused); H. & T. C. Ry. Co. v. Everett (Tex. Civ. App.) 86 S. W. 18; I. & G. N. Ry. Co. v. Trump, 42 Tex. Civ. App. 536, 94 S. W. 905, 98 S. W. 1101; Western Union Tel. Co. v. Guinn, 61 Tex. Civ. App. 177; 130 S. W. 618; Words and Phrases, First Series, vol. 7, p. 5955; Words and Phrases, Second Series, vol. 3, p. 780.

It is next complained that the jury’s answers to special issues 7 and 9 are inconsistent upon a material issue, and the court was not authorized to enter judgment based thereon. In answer to special issue No. 7, the jury found that the employees in charge of plaintiff in error’s train discovered the perilous position of Charles A. Cole in time to have stopped the train by the use of proper care, and t-hus have avoided the collision, and that such failure was a proximate cause of Cole’s death. In answer to special issue No. 9, the jury found that such employees failed to exercise reasonable care to keep a lookout for persons about to use the crossing such as would have enabled them to have discovered the perilous position of Cole in time to have stopped the train and avoided the collision by the use of the means at their command, and that such negligence was a proximate cause of Cole’s death.

There is no conflict or inconsistency between the answers of the jury to said issues. Northern Texas Traction Co. v. Weed (Tex. Com. App.) 300 S. W. 41. The effect of the answers of the jury to these issues is that, while the operatives failed to exercise reasonable care to keep a lookout to discover Cole’s perilous position, they did in fact discover his peril in time to have avoided the collision by the use of the means at their command.

It is also very strongly urged this court should hold that Cole, under the undisputed facts, was guilty of contributory negligence as a matter of law. It is unnecessary for us to determine this question, for the reason that, if we were to so hold, it would not authorize us to reverse the case. The finding in defendants in error’s favor on the issue of discovered peril, which is not challenged in this court, entitled them to a judgment, even though Cole was guilty of contributory negligence. Hays v. Gainesville St. Ry. Co., 70 Tex. 602, 8 S. W. 491, 8 Am. St. Rep. 624; Baker v Shatter (Tex. Com. App.) 231 S. W. 349; Hines v. Foreman (Tex. Com. App.) 243 S. W. 479; St. Louis S. W. Ry. Co. v. Cambron, 62 Tex. Civ. App. 465, 131 S. W. 1130.

Other errors of minor importance are complained of, but we think such questions were properly decided by the Court of Civil Appeals, and that we need not discuss them here.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J. Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: LATTIMORE, J.

text:
    WALKER v. STATE.
    (No. 12350.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    See, also, 6 S.W.(2d) 765.
    W. A. Johnson and W. A. Anderson, both of San' Angelo, for appellant
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft; punishment, two years in the penitentiary.

The record shows that appellant’s motion for new trial was overruled July 7, 1928, at which time notice of appeal was given. The statement of facts and bills of exception herein were filed November 1, 1928, tbis being 116 days after the notice of appeal was given. We pretermit discussion of the validity of any orders' extending the time for filing such papers. Under the terms of article 760, O. 0. P., no time can be given under any circumstances longer than 90 days, savp in case of disagreement between counsel and when the statement of facts is prepared by the court. No such facts appear here.

The state moves to strike out the statement of facts and bills of exception. The motion is well taken. The indictment correctly charges the theft of property of the value of more than $50, and is followed by the judgment and sentence.

No error appearing, the judgment will be affirmed.


author: CHRISTIAN, J.

text:
    Ex parte WELLS.
    (No. 12494.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    O. O. Wells, in pro. per.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an original application for a writ of habeas corpus.

The application is without merit. Relator was convicted in the district court of Coleman county of the offense of murder and his punishment assessed at death. On appeal to this court the judgment of conviction was affirmed on May SO, 1928. Motion for rehearing was overruled on November 28, 1928 [10 S.W.(2d) 991]. Many of the questions now presented by relator were determined adversely to his contention in disposing of the case on appeal. The application contains aver-ments as to irregularities in the trial which could only be availed of by appeal. If given support they would merely render the judgment voidable, and not void. The averments in the application disclose that relator is seeking to use the writ of habeas corpus as a writ of appeal. Mr. Branch, in his Annotated Penal Code of Texas, section 239, states the rule as follows: “A writ of habeas corpus cannot serve the purpose of an appeal, certiorari, mandamus, or quo warranto.” See Ex parte Burford, 70 Tex. Cr. R. 281, 156 S. W. 686.

The writ of habeas corpus is denied.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


text:
    EIDSON v. STATE.
    (No. 11891.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    Stone & Stone, of Jacksonville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant shot and killed Alton Mayfield. Appellant detailed rumors he had heard concerning misconduct of deceased and his (appellant’s) wife. He testified that he killed deceased in order to protect Ms home and his children. The evidence is sufficient to support the conviction.

The only bill of exception brought forward contains a statement of the grounds of objection to certain testimony claimed to be inadmissible. We are unable to determine from the bill whether the objections were well taken. A mere statement of a ground of objection in a bill of exception is not a certificate of the Ridge 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 judgment and sentence condemn appellant to confinement in the penitentiary for fire years. Mating application of the provisions of the indeterminate sentence law, the judgment and sentence are reformed, in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than five years.

As reformed, the judgment is affirmed.

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


text:
    LEONARD v. STATE.
    (No. 12383.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    I-I. A. MeCarley, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Conviction for aggravated assault; punishment assessed at confinement in the county jail for 730 days.

The trial was had upon an indictment purported to have been returned in the district court of ’ Dallas county. The record shows no transfer from the district court to the county court, where the case was tried. Article 419, C. O. P., provides:

“Upon the filing of an indictment in the district court which charges an offense over which such court has no jurisdiction, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.”

When a misdemeanor case is prosecuted upon an indictment, the order mentioned in the statute is essential to the jurisdiction of the county court. The showing Oj. jurisdiction is a necessity, without which this court cannot take cognizance of the case. Harris v. State, 57 Tex. Cr. R. 84, 121 S. W. 1116; Richardson v. State, 57 Tex. Cr. R. 285, 122 S. W. 560; Harper v. State, 84 Tex. Cr. R. 345, 207 S. W. 96; Henson v. State, 103 Tex. Cr. R. 139, 280 S. W. 585; Wilkins v. State, 109 Tex. Ct. R. 510, 5 S.W.(2d) 770. If there was a transfer, proper proof should be made. If no transfer was made, the prosecution should be dismissed.

The judgment is reversed, and the cause remanded.

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


text:
    KNIGHT v. STATE.
    (No. 12368.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.

      Hill & Engledow, of Shamrock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is bringing stolen property into this state; the punishment, confinement in the penitentiary for two years.

Appellant was convicted on a count charging that he stole one head of cattle from Chester Fires in the state of Oklahoma, and that he thereafter brought said head of cattle into Wheeler county, Tex. M. L. Mooney an accomplice, testified, in substance, that he and appellant went into the state of Oklahoma, where they stole a herd of cattle. Included in this herd, according to the testimony of Mooney, was one head of cattle belonging to Chester Fires. Mooney further testified that he and appellant drove the cattle from Oklahoma into the state of Texas. Appellant admitted that he went to Oklahoma with Mooney, but declared that he had nothing to do with stealing the cattle in question. He testified that Mooney told him that he wanted him to go to Oklahoma for the purpose of getting some cattle; that Mooney agreed to pay him for his services;. that he did not know that it was Mooney’s intention to steal the cattle; that he went with Mooney to Oklahoma, but while there had nothing to do with rounding up cattle, or taking them into possession; that after the cattle had been driven by Mooney and others to a point in Texas near the Texas-Oklahoma line, he (appellant) assisted Mooney in driving said cattle into Wheeler county, Tex. Appellant’s testimony, if accepted by the jury, would have led to the conclusion that he was not connected with the original taking in such manner as to make him a principal.

Appellant’s testimony raises two defensive issues. The first is that appellant was not connected with the original taking of the cattle in Oklahoma in such manner as to make him a principal. The second is that appellant was acting in the capacity of a hired hand, and that he merely aided Mooney in driving the cattle from a point in Col-lingsworth county without knowing that said cattle had been stolen. The court affirmatively instructed the jury as to the second defensive matter, but refused to instruct the jury as to the first matter. Timely and proper exception was taken to the failure of the court to submit such instruction. To meet the allegations of the indictment it was incumbent on the state to prove beyond a reasonable doubt that appellant stole the cattle in the state of Oklahoma. The state having charged that appellant stole the cattle in Oklahoma, if appellant’s connection with said cattle was subsequent to the theft thereof, he not having been connected with the original taking in'Oklahoma in such manner as to make him a principal, he was entitled to an acquittal. Hence appellant was entitled to the charge. McKnight v. State, 70 Tex. Cr. R. 470, 156 S. W. 1188.

It is contended that the accomplice, Mooney, is not corroborated as to the theft of the cattle in Oklahoma. In view of the fact that a reversal is ordered for the error above discussed, we pretermit a discussion of the question.

The judgment is reversed, and the cause remanded.

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


text:
    SHERWOOD v. STATE.
    (No. 12225.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    Fryer & Cunningham, of El Paso, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for aggravated assault; punishment, three months in the county jail.

There is no dispute in this case of the fact that in the course of a controversy between appellant and one Maitland, who. for brevity will be referred to in this opinion as M., appellant shot M. with a shotgun and inflicted serious bodily injury upon him. The two men had been partners in an automobile painting shop, and a sharp conflict is presented as to whether M. had sold out or still had some control over ears painted in the shop at the time of this trouble. The state prosecuted for assault to murder; appellant claimed a shooting in self-defense.

In his testimony appellant swore that the first thing in the way of a physical encounter between himself and M. was when the latter grabbed appellant by the overalls and jerked or yanked him so violently as to tear them from the waist down to the feet. Appellant said that the jerk was so vigorous that M. fell on the floor in a puddle of grease and water, from which he jumped up, grabbed a little bench used in painting auto tops, swung it around his head, and said he was going to demolish the whole damn place, and threw the bench. Appellant said, at this juncture, to M., that he was going to call the police, and started. M. followed, and when appellant got near the finishing room M. said. “G-d d — ■—n you, if you call the police I will kill you,”, and that when he went on further M. said again, “You G-d d-n s-of a b-, I will kill you,” and threw his hand behind him. Appellant said he ran to his gun, and, M. continuing to advance, appellant fired for the purpose of frightening him, and, this not stopping him, he fired twice more at him as quickly as he could. He further said that when the difficulty ended he went at once home, having to hold his overalls together with his hands to hide his naked body. His wife saw the condition of the overalls. On the trial a pair of overalls, torn, were produced.and identified as those worn by appellant at the time of the difficulty and testified to be in the same condition now as then, after which they were offered in evidence. Their introduction was refused by the court, and this action of the court here is properly complained of. We are of opinion that the learned trial judge was in error in rejecting this testimony. Same was material as supporting and corroborating appellant’s contention that M. began the difficulty and made the first assault on him. M. said he made no assault of any character upon appellant. Mr. Underhill in section 101 (3d Ed.) of his work on Criminal Evidence, says: “The introduction in evidence of clothing belonging to a defendant or to a witness, or worn by deceased at the time of his death, is a common occurrence.”

In Thomas v. State, 45 Tex. Cr. R. 115, 74 S. W. 36, there was a dispute as to whether the mother of deceased was holding him at the time of the homicide, the state claiming that his mother was doing this, appellant claiming that no one held deceased and that the mother of the latter was not even present. She was introduced as a Witness, and testified that she was holding her son when he was shot, and produced a dress which she said she wore at the time and which had blood spots on it, and which proof was offered by the state in evidence and admitted over objection. This court held the garment admissible, and said that its condition was an incident in connection with her testimony and corroborative of her statement. In Trigg v. State, 99 Tex. Cr. R. 384, 269 S. W. 782, we held it proper to introduce a coat whose condition aided in establishing a controverted issue, and it is stated that the fact that other testimony tended to establish the same issue upon which the coat was offered would make no difference. The books are full of cases holding such testimony admissible. We know of no case holding otherwise. This court has frequently held bloody garments admissible if they afford evidence upon some contested issue, even though there be possibility of their arousing passion. Mr. Branch, in section 1855 of his Annotated P. C., collates cases.

The main defensive issue in this case was that of self-defense against an attack both real and threatened on the part of M., of which his catching appellant by his clothes, when same were torn, was the beginning. The overalls were identified, and under the authorities their condition seems to afford corroborative evidence of the testimony of appellant and his wife. The overalls should have been admitted. The remarks of the trial court at the time the overalls were offered, complained of in a separate bill of exceptions, should not have been made. In our opinion the overalls did exemplify something. Art. 707, C. C. P., is plain, and forbids any discussion of testimony by the trial court in the presence of the jury, the statute saying that he should simply decide whether or not it is admissible. We have examined the other complaints and are of opinion same show no error.

For the matters mentioned, the judgment is reversed and the cause is remanded.


author: "MARTIN, J.

text:
    STOWE v. STATE.
    (No. 12094.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    J. D. Willis, of Waco, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   "MARTIN, J.

Offense, felony theft; penalty, two years in the penitentiary.

On or about the 7th day of December, prosecuting witness Denton had his Ford car stolen in the city of Waco. He next saw the car about 2⅛ or 3 months later, about 3½ miles out of Waco near the Speegleville road. At that time it was stripped of all of its parts. He later found the radiator and a number of other parts, but refused to identify or swear to any of them except his. radiator. William Hatcher, an accomplice, testified that after Christmas appellant took him out the Spee-gleville road to a point identified as the place where prosecuting witness’ car was located. At that time and place they took the radiator, back end, and a rear wheel off the car and brought them back to town. The radiator was subsequently sold by the accomplice Hatcher to one Mr. Thompson. The accomplice says the back end of this Ford car was appropriated by appellant and put on his car and the rear wheel was sold to one Mr. Blackman. Blackman saw appellant and Hatcher in possession of a radiator, but it appears to have been a different radiator and at a different time from the one when the radiator from Denton’s car was brought in. The facts exhibited in the record are somewhat confusing, but if we comprehend them, there is an entire absence of testimony corroborating the accomplice Hatcher. No one appears to have seen appellant take the car or in possession of the car, and no one except the accomplice gave testimony that he was ever near the stolen car. Three parts from the car were brought to town, but of these only the radiator could be identified by its owner, and the accomplice was the seller of same and the only one seen in possession of same. To state the matter otherwise, the statement of facts is entirely lacking in any testimony which connects appellant directly' with the stolen ear or any of its parts, except such as came from the accomplice Hatcher. The court properly charged the jury that Hatcher was an accomplice and gave the usual charge requiring testimony corroborative of that of the accomplice. There is some testimony given by a detective and other witnesses. Much of this is of doubtful admissibility and tends mainly to show that appellant was a thief generally, but fails, we think, to legally connect him directly with the offense charged. Because we think the evidence is insufficient to corroborate the accomplice Hatcher, the judgment of the trial court 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.


author: MARTIN, J. MORROW, P. J.

text:
    STRINGFELLOW v. STATE.
    (No. 12179.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    W. H. Tolbert, of Fort Worth, for appellant.
    Y. P. Craven, Co. Atty., of Weatherford, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

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

Appellant was indicted as a principal for the robbery1 of Walter Browder with firearms. A sufficient statement of the evidence to illustrate the point discussed is briefly as follows:

The injured party, Walter Browder, was in business in the town of Weatherford, and on the night of November -27, 19-26, a Ford ear parked in front of his place of business, in which he observed two men, the driver and his companion on the.front seat. Thereafter the companion of said driver entered witness’ place of business and robbed him of $200 at the point of a pistol. About one-half hour thereafter a Ford car was chased by officers down the Fort Worth highway, and an object was seen to jump therefrom. Approaching the spot, officers found appellant climbing out of a ditch. He claimed that a car knocked him in the ditch. A few minutes later the same Ford car was captured, and in it was one occupant. The occupant was identified as the driver of the car which parked in front of appellant’s place of business. Appellant was not identified as one of the occupants of said car at the time of the robbery. He is not shown to have been present at same, nor are there sufficient circumstances to show that he ever advised or encouraged the commission of the offense. The state shows the presence of appellant in town on the night of the robbery, but nowhere proves his presence in the vicinity of the robbery at the time of its commission. Appellant had neither a pistol nor any of the stolen money in his possession when captured. Nor was either shown to be in possession of the other party when captured.

It is insisted that the evidence is insufficient. The rule has been stated as follows: “If the defendant on trial was not present when the offense was committed and was doing nothing in aid of the common design when the offense was committed, he would not be a principal although the facts support the theory that he was both an accomplice and accessory, or a receiver of stolen property, or either.” Bean v. State, 17 Tex. App. 60; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; Branch’s P. C. p. 348.

It has- been further stated: “If the state indicts and tries one as a principal under article 78 of our Penal Code [1911], that is, as one who advises and agrees to the commission of a crime and who is present when same is committed, the proof of the presence of the accused must be made in accordance with law.” Ross v. State, 104 Tex. Cr. R. 601, 286 S. W. 221. See, also, Noble v. State, 100 Tex. Cr. R. 404, 273 S. W. 251; Menefee v. State, 67 Tex. Cr. R. 201, 149 S. W. 138.

The court correctly charged the jury on the law of principals as- follows: “All persons are principals who are guilty of acting together in the commission of an offense. Any person who advises or agrees to the commission of an offense and who is present when the same is committed is' a principal offender, whether he aid or not in the illegal act.”

The burden was upon the state to prove that appellant came within the terms of this definition of principals, and, believing that it has failed to make this proof, the judgment of the trial court 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.

The State’s motion for rehearing has been examined and considered. The conclusion reached and stated in the original opinion, however, is deemed correct.

The motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J. CHRISTIAN, J.

text:
    MOLLOY v. STATE.
    (No. 11886.)
    Court of Criminal Appeals of Texas.
    June 23, 1928.
    Rehearing Granted Jan. 30, 1929.
    State’s Rehearing Denied March 20, 1929.

      Hartgraves & Swain, of Menard, for appellant.
    J. A. Thomaá, of San Angelo, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for resisting an officer; punishment, a fine of $100.

Appellant’s first bill of exceptions complains that a witness was permitted to answer a question, “What was his condition at that time with reference to being drunk or sober?” The objection was that witness had not qualified and did not show that he knew the difference between being drunk and being under the influence of intoxicating liquor. The objection was overruled, and the witness testified that he thought appellant was drunk. Stewart v. State, 38 Tex. Cr. R. 627, 44 S. W. 505. We see no error in this. Substantially the same complaint appears in bills of exceptions Nos. 2, 3, and 5.

Bill No. 4 complains of the action of the trial court in sustaining the state’s objection to a question propounded to the officer, resistance of whose effort to arrest appellant seems to be the state’s case. Appellant wanted to have said witness testify that prior to the time of trial he (appellant) had been arraigned in the justice court on a charge of disturbing the peace, and that the complaint upon which he was tried was signed and sworn to by the witness, and that the charge in the complaint was for conduct arising out of the same facts and transactions as in this ease, and that the defendant was tried and acquitted on said charges. We fail to see the materiality of this testimony, and are of opinion that the court correctly sustained the objection.

There is complaint made in bill of exceptions No. 6 of argument made by the prosecution in effect asking the jury to stand by their officers, who were protecting the lives and property of the citizens while they sleep, and urging the jury to uphold the officers in the enforcement of the law, because crime is on the increase, and the only way to stop it is to convict those charged, that some crime is in the paper every day, and, if we do not uphold the officers, we might as well quit. As we understand this bill, the court instructed the jury not to consider the argument. There' appears in the record no written instruction asked by appellant to that effect. We do not deem the argument of such injurious effect as to render it incapable of being remedied by the instruction. There is complaint further of an argument of the state’s prosecutor in effect that the jury need.not be afraid of any suits being brought against the sheriff or his bondsmen because of the acts of his deputy sheriff, Brandon, in connection with this case. Defiance of defendant’s attorneys to bring suit against them, or for any lawyer in Texas to bring such suit, was presented in the argument. We find in the record no request in writing that the court instruct the jury not to consider such remarks. It did not relate to the criminality of the accused. We do not quite comprehend how it can be believed to have been material either way.

The testimony in the case was conflicting, but that of the state seems to sufficiently support the proposition that appellant was drunk in the.town of Eden and resisted arrest when attempted by a deputy sheriff, and that he made an assault upon said officer.

Binding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant complains that we erred in our original opinion by grouping bill of exception No. 5 with bills 2 and 3, when in fact bill No. 5 related to an entirely different matter. Appellant is correct. The bill in question shows that, after a witness for the state had testified that he could tell appellant “had had several drinks of whiskey and was drunk” he was asked on cross-examination to explain “what he meant by appellant being drunk, whether he was entirely under the influence of intoxicating liquor and drunk, or whether he was drinking and only partially under the influence of intoxicating liquor.” State’s counsel objected on the grounds that the question had been answered, that the witness had said he was drunk, and that the question last asked was irrelevant. At this point the court made the following remark: “I think this has already been threshed out. It Seems to the court that you are too technical about the trial of the case and the introduction of evidence and that you are trying to split hairs too much.” Immediately upon the court making this remark, the attorney representing the state said, “Xour honor is right, they are trying to be too technical and if you will rule with us about twice we will get away from all that foolishness and try the defendant according to the law, common sense and in accordance to justice.” Appellant excepted to both the statement of counsel and the court, and requested the court to instruct the jury not to consider either statement. The court did instruct the jury not to consider remarks of counsel for the state, but did not include in such instruction his own remark. However, the court then overruled the state’s objection to the question and the witness answered as follows: “As to whether he was drunk, or only drinking, and partially under the influence of intoxicating liquor, will state I considered him pretty full.” The remark of the trial judge may have been unfortunate, but, in view of the fact that the court overruled the state’s objection and permitted the witness to answer the question, the matter seems trivial and would not justify a reversal.

Appellant urges that we were in error in our original opinion in holding immaterial the evidence, rejection of which is complained of in bill of exception No. 4. We may have misapprehended the purpose for which the evidence was offered. Its materiality will not be apparent without a résumé of the facts. Brandon, the officer, claimed that appellant was drunk, was cursing and using loud and boisterous language. Brandon is not supported by any testimony other than his own that appellant was disturbing the peace prior to his arrest. As to whether he was drunk the evidence is conflicting, but would support a finding that he was drunk in a public place on the streets of Eden in Concho county, and that Brandon had the right to arrest him. The case, however, does not turn upon the right -to arrest, but upon the conduct of the parties after the arrest. Brandon’s story about it is as follows: That, observing appellant was drunk, he advised him to go home, and that appellant replied he would do as he damn pleased .about it. That, after telephoning the city marshal, Brandon came back on the street and arrested appellant, when Jess Woods “started to interfere,” whereupon Woods was also arrested. Brandon does not say in what way Woods attempted to interfere. Brandon then started down the street with appellant and Woods, when Forrest Lumbley attacked the officer from behind. That, when Brandon turned toward Lumbley, appellant attacked Brandon from behind, choking and striking him. That at this point Brandon drew his pistol and knocked Lumbley loose and then struck back over his shoulder with the pistol and knocked appellant loose. Brandon admits that, although there was a magistrate in Eden and also one at Paint Rock, the county seat of Concho county, he did not take appellant and Lumbley before a magistrate at either place nor give them an opportunity to make bond, but took both of them to Ballinger in Runnels county and placed them in jail. No witness supports the officer in his claim that appellant struck oi: attacked him in any way. Jess V/oods’ account of the matter is that, when Brandon arrested appellant, he (Brandon) said he was going to take appellant to Ballinger, and that he (Woods) asked the officer what he had against appellant, and appellant asked the officer if a citizen did not have a right to make bond in a misdemeanor case and stopped as if to discuss the matter with Brandon, whereupon on the officer drew’ his pistol and struck appellant. This is also appellant’s account of the matter. All other witnesses who were in a position to see and know what happened testify that, at the time the officer told appellant to go home, appellant made no reply whatever, and denied that he was cursing or in any other way disturbing the peace, but some of them said he was under the influence of liquor.

After Brandon admitted upon the trial that he did not give appellant an opportunity to make bond either at Eden or Paint Rock, but carried him to Ballinger and placed him in jail, and also admitted that he had sworn to the complaint on which appellant was then being tried and also to another complaint charging appellant with drunkenness, he was asked if, prior to swearing to the two complaints last referred to, appellant had not been arraigned in justice court at Eden, Tex., on a charge of disturbing the peace, and that the complaint upon which he was tried was signed and sworn to by the officer, and that he was also the prosecuting witness, and that the charge in that complaint was for conduct arising out of the same transaction as the case then on trial, and that defendant was tried and acquitted on that charge, and if after such acquittal Brandon did not then come to Paint Rock and file two more charges against appellant in the county court growing out of the same transaction. State’s counsel objected to the question on the ground that it was immaterial and had no bearing on the case. Upon inquiry from the court as to the purpose of the proposed evidence, defendant’s counsel stated^ that it was desired for the purpose of showing “animus, prejudice and ill will on the part of the witness Brandon against this defendant and to further show a motive on his part in testifying against defendant and he was doing so in order to protect himself.” The objection' interposed by the state was sustained, and the evidence rejected. Appellant and the other witnesses who claimed to know anything about the facts (other than Brandon) deny that appellant was disturbing the peace or ever struck the officer or offered him violence in any way. It is admitted that Brandon struck appellant with a pistol. It was evidently appellant’s theory that the prosecution was being urged by the officer, unjustly prompted by an improper motive, either of animus or to justify the officer in having struck appellant. There was conflict in the testimony, and it was for the jury to determine such matters and the weight to be given the testimony of the various witnesses. We have reached the conclusion that appellant’s contention should be sustained that the jury had a right to know, in connection with the other facts, that the officer had filed a prosecution against appellant in the justice court at Eden for disturbing the peace and that not until acquittal resulted had he instituted the prosecutions in the county court (one of which was the present case), in order that the jury might consider such action of the officer in determining the weight to be given his testimony upon the vital point of conflict in the evidence. The animus, motive, or ill will of a prosecuting witness who testifies to facts hurtful to accused is never a collateral or irrelevant inquiry. Branch’s Ann. Tex. P. C. § 163 for authorities. See, also, Edwards v. State, 75 Tex. Cr. R. 647, 172 S. W. 227; Pope v. State, 65 Tex. Cr. R. 51, 143 S. W. 611.

Believing we were in error in holding immaterial the proffered evidence under the facts.of the present case, the motion for rehearing is granted, the judgment of affirmance ‘Set aside, and the judgment of the trial court is reversed and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, J.

The state contends that the action of the court in excluding the evidence upon which a reversal was predicated constituted harmless error; it being asserted that substantially the same evidence was later given by the same witness without objection. It is stated in the motion: “Immediately following this rejection of testimony the appellant was permitted to prove and did prove that .the prosecuting witness, M. B. Brandon, did swear out complaints against appellant in justice court for disturbing the peace and in the county court upon the present charge.” The record fails to sustain the state’s contention. Relative to complaints filed against appellant by the prosecuting witness, the only testimony in the record on the point was given by the prosecuting witness himself. He said: “I swore out a complaint in this case. I also swore to the complaint in another case now pending in this court wherein he is charged with being drunk in a public place which is based on the same state of facts that this one is.” The fact that .it was shown that two complaints had been filed in the county court by the prosecuting witness against appellant on charges growing out of the same transaction was not, in substance or effect, equivalent to evidence that, following an acquittal in the justice court upon a complaint filed by the prosecuting witness charging appellant with disturbing the peace, two complaints were filed in the county court by the same witness. We deem it unnecessary to reiterate the views contained in the opinion on appellant’s motion for rehearing. The record failing to sustain the state’s contention, we express' the opinion that an affirmance of the judgment of conviction would not he warranted.

The motion for rehearing is overruled.

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


author: MARTIN, J.

text:
    RODGERS v. STATE.
    (No. 12331.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.

      Beall, Beall & Beall, of Sweetwater, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

A complaint was filed against appellant in the county court of Nolan county, which, omitting its formal parts, charges that appellant “did then and there while doing business as a pawnbroker, receive from George A. Morrison one flashlight and one overcoat in pledge, for the loan of a sum of money, to wit: $1.50 upon interest, without then and there having complied with the statutes regulating pawnbrokers.” The information is in the same language.

The point was properly raised in the court below and is here presented that they are each insufficient to charge an offense. The particular portion under attack is the last clause, viz. “without then and there having complied with the statutes regulating pawnbrokers.” The civil statutes prescribe the laws regulating pawnbrokers in this state, and will be found in articles 6146 to 6161, both inclusive, R. C. S. (1925)., Article 6147 provides for the giving of a bond by a pawnbroker, and for new bond under certain conditions every twelve months, and for the recording of such bond in the office of the county clerk. Article 6148 provides in part that each pawnbroker shall keep a well-bound book to be kept open for inspection, in which he shall register all his transactions as a broker at the time the same occurs. Article 6149 provides that the broker shall give to the party pledging a ticket corresponding to the entry on' the book of registry. These are sufficient to illustrate the different and varying ways by which the statutes regulating pawnbrokers may be violated. Without setting them all- out in .detail, there are many ways by which appellant could violate these statutes, and the information nowhere apprises appellant of the particular act he is called upon to answer. The information is substantially in the language of the státute, but this is not always sufficient. There are cases that require greater particularity, either from the obvious intention of the Legislature or from application of known principles of law. Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Branch’s Criminal Digest, § 494. The language of this particular statute does not completely describe the offense, but, on the other hand, by its terms makes appellant amenable to the law for any of several distinct affirmative acts, the nature of which appellant is not apprised of. An indictment or information must particularize the acts or omissions complained of, and the elements of the offense should be so averred as to apprise the accused of the charge against him and to enable him to plead a judgment in bar of another prosecution for the same act. Alexander v. State, 27 Tex. App. 95, 10 S. W. 764; Jennings v. State, 88 Tex. Cr. R. 639, 229 S. W. 525.

Because of the insufficiency of the information and complaint, the judgment of the trial court 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.


text:
    ELDRIDGE v. STATE.
    (No. 12099.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.

      Chas. E. Jeffries, of Dallas, and H. D. Carpenter, of Greenville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State. • .
   CHRISTIAN, J.

The offense is perjury; the punishment, confinement in the penitentiary for two years.

The sufficiency of the evidence is challenged. W. A. Phillips was struck by an automobile as he crossed a street in the town of Green-ville. He was unable to identify the parties driving the car. The car, failed to stop, and its occupants rendered no aid to the injured party. Appellant was duly questioned under oath by the justice of the peace about the matter of striking Phillips. He testified that he was in a car with Jimmie Jeffries at another and different place on the occasion of the accident, and that the car they were in did not strike anybody during the time they were driving it.

On the present trial, Gordon Henley testified that he, appellant, Jimmie Jeffries, and Garvis Dugan were in the car that struck Phillips, and that Jeffries was driving the car. According to Henley, Jeffries suggested that, if they were called upon to testify concerning the matter, they would all deny that the ear they were driving struck Phillips. Henley testified that all of the parties agreed to deny that they had been on the street on the occasion, or that they struck anybody, or had been in an automobile. Du-gan testified to substantially the same matters as Henley. He stated on direct examination by the state that they did not agree to swear in court that they were not present when Phillips was injured, but they agreed to say that they were not there. On cross-examination he stated that they agreed that “if the officers got hold of us, took us up to headquarters, or took us anywhere, we are not to tell anything about it at all, and we all agreed to that.” In answer to a question by the court he said: “Well, they said that, if they caught us and found out who it was, we wqre to tell them we did not know anything about it.” Counsel for appellant asked him what he meant by “they.’? He answered: “The law; the officers, or the court; anybody that called on us to testify about it; we all made that agreement as to what we would testify.” The witness stated, however, that when they caught him he told the truth. Jeffries was not used as a witness. The district attorney testified, in substance, that appellant had stated to him that he was guilty; that he regretted that he had sworn falsely; that the reason he swore falsely before the justice of the peace was that he and his companions had agreed at the time of the accident that they would swear as he had sworn, in ■order to keep the facts from being found out.

The court charged the jury that Henley was an accomplice, and submitted to the jury the question as to whether Dugan was an accomplice. Under the evidence, we are of the opinion that Dugan, as well as Henley, was an accomplice as a matter of law. Such being the case, they were not credible witnesses under our law of perjury. Conant v. State, 51 Tex. Cr. R. 610, 103 S. W. 897; Godby v. State, 88 Tex. Cr. R. 360, 227 S. W. 192. Article 723 C. C. P. provides: “In trials for perjury or false swearing, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement under oath, or upon his own confession in open court.”

In Hernandez v. State, 18 Tex. App. 134, 51 Am. Rep. 295, the words “strongly corroborated,” used in our statute, are defined as follows: “Our statute, in using the words ‘strongly corroborated,’ means that the corroborating evidence must relate to a material matter, that is, must tend to show the falsity of defendant’s oath, and, taken all together, it must be, in the opinion of both the court and the jury, strong; that is, cogent, powerful, forcible, calculated to make a deep or effectual impression upon the mind.”

In Melton v. State, 84 Tex. Cr. R. 398, 207 S. W. 316, we said: “In perjury the statute requires that the proof of the falsity of the statement declared on must be established by two credible witnesses, or by one such witness strongly corroborated by other evidence. This statute has been construed to differ from the general statute requiring corroboration of an accomplice’s testimony, in that in such statute it is required only that the corroborating evidence ‘tend’ to connect the accused with the commission of the offense, while in the statute on perjury there must be, either two credible witnesses, or evidence equivalent thereto. This may be supplied by circumstances coming from credible or strongly corroborated witnesses; but it cannot'be supplied by one credible'witness and one who is not a credible witness, such as an accomplice.”

Aside from the testimony of the accomplices, we have the uncorroborated testimony of one credible witness, showing the falsity of the statement made by appellant to the justice of the peace. This fails to meet the requirements of the statute.

The evidence being insufficient, the judgment is reversed and the cause remanded.

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


text:
    WEATHERSPOON v. STATE.
    (No. 12359.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    Taylor & Irwin, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

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

Two deputy sheriffs of Dallas county found in the back end of a Dodge Coupé a gallon and a half of whisky. The car was parked at Gravel slough, described as “twenty-three miles from the court house in the southeast part of the county.” Appellant was observed near the car, and it was proven that the car belonged to appellant.

For the appellant it was shown that he came to the dance in a Ford car with three other people, and that his car was brought without his knowledge or consent to the dance by his son. Appellant’s son introduced evidence to show that the whisky had just been purchased from a negro by him and other boys and placed in the car immediately prior to its search by the officers.

Three bills of exception appear-in the record. One of these shows that the prosecuting attorney in his argument to the jury used the following language with reference to appellant and his son: “I tell you gentlemen what they were doing; this man was down there peddling whisky and had his boy peddling it for him.”

The court certifies as a fact in this bill: “There was no testimony introduced from any source that the defendant was down there peddling whisky and had his boy peddling it for him.”

As a further background for this bill we quote from bill of exception No. 2, which was filed by the court in lieu of a bill prepared by the appellant, and refused by the court. Mr. Patrick, one of the deputy sheriffs, was the witness:

“Q. Now, since he has been talking about what you found out. why did you follow Weatherspoon? A. Well, because we had been told that he had been — •
“Mr. Irwin: Just a minute. Xour Honor, we object to that.
“The Court: Don’t tell what you have been told.
“Q. Mr. Patrick, do you know what his general reputation is in that community — not what you know personally, but what you have heard — as to whether he is a bootlegger that sells liquor or whether he is a peaceable, law abiding citizen? A. Well, naturally, I have heard down there that he sells whisky.”

No exception appears to have been taken, and no motion made, to strike this testimony, and it is quoted only to illustrate the action of the prosecuting attorney.

By bill of exception No. 1 it is made'to appear that this same witness over objection of the appellant testified: “That when he got there (that is to the place where he found an automobile containing whisky, and arrested the defendant) where the car belonging to the defendant was parked, that he had a description of the defendant’s car, and it was a Dodge Coupé.” It is claimed that this last statement was prejudicial, in that it was calculated to impress the jury with the belief that the officers prior to this time had received information of the presence of the whisky in his car.

Reverting back to the first bill of exception with reference to the argument of the prosecuting attorney, it will be observed that the court certifies that “there was no testimony introduced fi-om any source that the defendant was down there peddling whisky and had his boy peddling it" for him.” The issue of guilt or innocence was rather sharply drawn. One of the essential elements of the offense charged, which it was necessary for the state to prove, was that the whisky was possessed for the purpose of sale. The statement of the prosecuting attorney furnished the direct evidence which the state needed, but apparently did not have on this issue. This error is accentuated, we think, by the action of the prosecuting attorney in procuring by his question the witness Patrick’s statement to the jury over the objection of appellant and in the face of the ruling of the court that “I have heard down there that he sells whisky,” and further by the improperly admitted statement shown in bill No. 1, above referred to. These several matters were well calculated to, and probably did, influence a verdict of guilty on the theory that appellant was an habitual law violator.

That the accused was a bootlegger is not admissible as evidence. Downs v. State, 108 Tex. Cr. R. 223, 299 S. W. 648, where many authorities are collated. No special instructions were asked to disregard the argument complained of, but we think that under the facts of this case that same constituted reversible error without such request. Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 131; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147; Wright v. State (Tex. Cr. App.) 93 S. W. 548; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679.

Because of such improper argument, the judgment of the trial court is reversed and cause remanded.

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


author: MARTIN, J. LATTIMORE, J.

text:
    ADAMS v. STATE.
    (No. 12317.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    J. Boss Bell, of Childress, and Lockhart & Garrard, and F. D. Brown, all of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., • of Austin, for the State.
   MARTIN, J.

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

The transcript shows that the original indictment returned at the January term of the district court of Terry county was lost, and at the subsequent August term was substituted. It is contended by appellant in his brief that there was error in substituting the said indictment before the appellant had pleaded to the original indictment, and, further, that appellant was entitled to notice of the application of the state to substitute same. We have only the bare assertion of these matters in the brief, as the transcript on file is entirely silent with reference to the existence of the facts alleged in appellant’s brief. However, in passing we will say that it has been pointedly decided that an indictment may be substituted before the accused has pleaded to the lost indictment. Withers v. State, 21 Tex. App. 210, 17 S. W. 725; McDowell v. State, 55 Tex. Cr. R. 599, 117 S. W. 831. There are expressions of doubt as to the validity of such procedure in some of the old cases as well, also, as expressions in some later easeSi which may be construed as sustaining appellant’s view. We regard,-however, the two cases above cited as announcing the correct rule.

It is further contended by appellant that the court erred in overruling his application for a continuance.- The application on its face shows that subpoenas were caused to be issued at the January term, 1928, for Vernon Holden, who was alleged to reside in Garza county, Tex., and four witnesses who were alleged to reside in Terry county, Tex. The application further recites “that this defendant is not able to state whether the subpoena for Vernon Holden was mailed out by the clerk of this court or not,” and, further, “that this defendant is not able to say whether these subpoenas were served or not.” At the August term, 1928, néw subpoenas were caused to be issued for these witnesses. It will be observed that four of these witnesses were alleged to be residents of Terry county where appellant was tried and the sheriff of which is alleged to have possession of the subpoenas issued for- these witnesses. There seems no excuse for not ascertaining for six months whether or not the sheriff of Terry county had served the four witnesses. Nor is there any excuse offered for failing to ascertain whether or not the clerk; had mailed out a subpoena for witness Vernon Holden to Garza county. Appellant apparently waited more than six months before making any effort to secure the attendance of these witnesses, or ascertaining the status of the matter. Under these circumstances, in our opinion there was an entire lack of diligence on his part. For full collation of authorities, see Vernon’s C. C. P. 1925, art. 543, note 5; also Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Jordan v. State, 96 Tex. Cr. R. 70, 255 S. W. 735; Crispi v. State, 90 Tex. Cr. R. 621, 237 S. W. 263; Howell v. State, 95 Tex. Cr. R. 583, 255 S. W. 171. In our opinion the court did not abuse the discretion placed with him by law in overruling appellant’s application and refusing his motion for new trial based thereon.

The appellant excepted to the failure of the court to charge that Marlin Forbes was an accomplice. It is shown that the sale of whisky, occurred near where a dance was being held and that Marlin Forbes went with appellant in an automobile about four miles, where appellant got the whisky, returned with it, and sold it to prosecuting witness. He says he went with him, he guessed, to get some whisky for himself, and admits being under the influence of whisky he drank while on this trip. ' This testimony, to our minds, fails to show that Marlin Forbes was an accomplice as a matter of law. It is not necessary for us to decide whether the evidence raised an issue to be decided by the jury, as to whether Forbes was an accomplice, as no such question was properly raised-in the trial court.

Believing the evidence sufficient, and there ' being no errors in the record, the judgment is affirmed.

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

On Motion for Rehearing.

LATTIMORE, J.

We have again reviewed the case in the light of the able motion for rehearing. Appellant insists that Forbes was an accomplice witness as a matter of law. We still find ourselves unable to assent to this proposition. Appellant cites Franklin v. State, 88 Tex. Cr. R. 342, 227 S. W. 486; Franklin v. State, 89 Tex. Cr. R. 252, 230 S W. 692; Chandler v. State, 89 Tex. Cr. R. 599, 232 S. W. 337; and Dean v. State, 160 Tex. Cr. R. 349, 272 S. W. 1113. Each of these eases was tried under the law as it was before the passage of present article 670, P. C., which takes the transporter, possessor, and purchaser of intoxicating liquor out of the pale of accomplice witnesses. Said opinions are upon eases wherein the purchaser and transporter were accomplice witnesses. Not so now.

Forbes testified in this case that Buster Stockton asked appellant in his hearing if he knew where he could get whisky, and that he (witness) got in appellant’s car and went with him shortly thereafter; that when they had gone about four miles appellant got about a half gallon of whisky from among some weeds; that appellant brought the whisky back to the dance, from which the parties went, stopping on the road to put some of the whisky in a different bottle. When they got back to the dance witness said he saw appellant sell the whisky to Stockton and saw Stockton pay appellant for it. He said in so many words that he went along with appellant, wanting to get some whisky himself. We find nothing in the record showing that he claimed the whisky or had any interest therein or in the transaction, or that he suggested any sale, or aided in any way. At most, when he overheard these other parties discussing the getting of whisky, he went with appellant to where the latter got same and from which place ■ appellant transported the liquor back to the dance, where he sold it to Stockton. We do not believe that this even raises the issue of whether Forbes was an accomplice, and certainly did not make him an accomplice as a matter of law.

The motion for rehearing will be overruled.