author: PER CURIAM. HAWKINS, J. YANTIS, J.

text:
    TERRELL, Comptroller, v. MIDDLETON.
    (No. 10014.)
    (Supreme Court of Texas.
    March 28, 1917.)
    On motion for rehearing.
    Motion overruled in 191 S. W. 1138.
    See, also, 187 S. W. 367, for decision in Court of Civil Appeals.
    Pat M. Neff, of Waco, and White, Cart-ledge & Wilcox, of Austin, for plaintiff in, error.
   PER CURIAM.

Rehearing denied.

HAWKINS, J.

(concurring). Speaking for myself only, I think that the motion for rehearing should be overruled, for the reasons stated in my concurring opinion in this case, filed February 20, 1917. 191 S. W. 1138. Having carefully considered said motion during the preparation of said opinion, it was not my purpose to write again in the case; but several features of the opinion of this date by Mr. Justice YANTIS, dissenting from the order of this court overruling said motion, impel me to say what' follows: Because I did not consider section 48 of article 3 of our state Constitution applicable, I did not, in my former opinion, discuss that section ; but, now that one member of this court has pointed to section 48, alone, as affording constitutional sanction for such appropriations and for such expenses, I feel called upon to say now, specifically, that in that section I can find nothing whatever which conflicts with any of my views or conclusions as set out in my said former opinion.

Section 48 relates, primarily, to the raising of state revenues, and only in a secondary and inferential way does it relate to the making of appropriations or to the incurring: or payment of expenses of any kind. The making of such appropriations from the state treasury and the manner of incurring expenses upon the faith and credit of the state, and payment thereof, are treated, specifically and directly, by other sections of our Constitution, as pointed out by me in said former opinion, and to such other sections we must turn to find express restrictions upon the power of the Legislature to make such appropriations and upon the power to incur or pay such expenses. It is but a platitude to say that those express and specific and unambiguous restrictions, as far as they go, . control all implications of section 48 as to such appropriations and such expenses. Consequently, the right of the Legislature to appropriate revenues -‘sufficient for the economical administration of the government” and for the payment of “all officers, agents, and employes of the state government, and all incidental expenses connected therewith” which right is recognized, by implication, in •section 48, clearly is subordinate to, and, very plainly, is controlled by, such other more direct and more specific constitutional provisions, such, for instance, as section 5. of article 4, which carries a very obvious limitation upon not merely the “salary,” but upon the entire “compensation,” of the Governor, and section 44 of article 3, which certainly inhibits all expenditures not provided for “by pre-existing law,” all as pointed out in my former opinion.

Moreover, the right of the Legislature to make appropriations to cover whatever properly and fairly may be considered and treated as “incidentals,” as that word stands in section 48, which right, as hereinabove indicated, is declared only inferentially, by the section, is, in the present case, a purely abstract and merely academic matter, because none of the appropriations or expenses in controversy falls within such designated class, as being “incidental” to the Govern- or’s official duties, and none of said expenses was authorized by any valid pre-existing law. That much is clear as matters of law. My views upon those features of this case are set out at length in said former opinion. X refer to them here solely for the purpose of developing, very briefly, my idea of the meaning and legal effect of section 48, which was not there discussed.

With the exception of his views as to section 48 of article 3, said dissenting opinion is, in substance, but little more than a reflex of said motion, and I will not attempt to answer it in detail; however, I trust that I may be pardoned for the following observations:

A sufficient reason for voting down in the constitutional convention the quoted resolution denying to the Governor “fees or perquisites or extra compensation” probably was that, already, the subject had been exhausted in section 5 of Article 4. Evidently said dissenting opinion was not then anticipated. The logic of my distinguished dissenting Associate leads, inevitably, to the conclusion that the Legislature is entirely free to provide by law for the Governor “fees” and “perquisites,” if not “extra compensation,” in the widest possible range and in unlimited amounts, and is also free to make like unrestricted appropriations for any and all other officers, agents, and employes of the state government. At that view of the legal effect of our Constitution its framers doubtless would now stand aghast. I do. Upon that point, as related to appropriations and expenses for the Governor, such as those here in controversy, a sidelight is found in section 22 of article 4 of our Constitution which provides, with reference to the Attorney General:
“He shall receive for his services an annual salary of two thousand dollars, and no more, besides such fees as may be prescribed by law: Provided, that the fees which he may receive shall not amount to more than two thousand dollars annually.”

The contemporaneous omission from section 5 of article 4, prescribing the “compensation” of the Governor, of any provision for “fees” for the Chief Executive, is very significant, and indicates, unmistakably and sufficiently, an intent to prohibit the Legislature from granting or allowing to the Govern- or any such fees, just as the provision in section 5 of article 4 that he “shall have the use and occupation of the Governor’s mansion, fixtures and furniture” indicates an intent that he shall not be allowed any other “perquisites” whatever.'

I decline to be bound by the decision of the Supreme Court of Nebraska in State v. Sheldon, 78 Neb. 552, 111 N. W. 372, because I regard it as clearly erroneous, and the same remark applies to the decision of the Pennsylvania Supreme Court in Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825. In the matter of appropriations the Constitution of Pennsylvania is far less restrictive than ours.

The quoted provision of the Constitution of the United States (Const, art. 2, § 11 relative to the “compensation” of the President fixes no limit in the amount thereof; and if the stated appropriations thereunder have ever been tested in the courts, that fact has not been pointed out.

The actions of the district court, and of the Court of Civil Appeals, and of the Supreme Court, in this case, involve no judicial review of, or control, or attempt or purpose to control, executive or legislative discretion in any matter in which those departments are either authorized or permitted by our Constitution to act, to the extent of incurring and paying the expenses in controversy, and such judicial action does not impugn the motives of any member of either of those departments. Such judicial action is entirely consistent with the usual presumption that all members of those departments who have acted in the premises did so in good faith and upon the belief that said appropriations and expenses were not obnoxious to our Constitution, but valid in all respects, just as the dissenting member of this court now acts and believes. The issues presented in this case do not involve the motives of any one; they are questions of law, arising upon uncontroverted facts, tested by our state Constitution. In any event the issues should remain unclouded.

YANTIS, J.

(dissenting). This was an injunction suit instituted in the Fifty-Third district court of Travis county, Tex., by one W. C. Middleton, a citizen of Rains county, Tex., who sued as a citizen and taxpayer of the state to restrain H. B. Terrell, comptroller, from issuing warrants to pay certain items for which an appropriation had been made by the Legislature in favor of Govern- or O. B. Colquitt, to defray certain mansion expenses incurred by him while he was Governor of Texas.

The following terse statement of the case is copied from the argument of plaintiff in error:

“The Thirty-Third Legislature at its first called session appropriated for the Governor’s mansion and grounds, among other things, the following: ‘Fuel, lights, water, ice, groceries and incidentals for the year ending August 31, 1914, $2,000.00, and for the year ending August 81, 1915, $2,000.00.’ Acts First Called Session, Thirty-Third Legislature, page 118. lae appropriation for the year 1915 having been exhausted, the Thirty-Fourth Legislature at its first regular session by section 3 of the act approved February 12, 1915, made an appropriation to cover certain deficiencies, among which was the following: ‘For Governor s mansion, water, fuel, lights, etc., $1,500.00. Acts of the Regular Session, .Thirty-Fourth Legislature, page 14. There is no contention that the deficiencies for which said deficiency appropriation was made were not authorized and created in the usual and ordinary way provided by law, but the contention is made that the appropriation bills above referred to, upon their faces, show that they were made for the purpose of increasing the salary of the Governor of this state, and are in contravention of section 5, article 4, of the Constitution of this state, and are therefore void. It is admitted that the deficiency appropriation of $1,500.00 was made for the purpose of paying the claims offered m evidence in this case by the defendant in error, and no contention is made that any of the claims involved in this suit were not covered bv and intended to be paid out of the said $1,-0 00.00 deficiency appropriation. The court below found and held that the claims of the city of Austin for water and light, the claim of .Voss & Knock for various kinds of dishes, the claim of G. A. Dahlieh for furniture, carpets, etc., the claim of M. B. King for cleaning flues in the mansion, and the claim of the United Telephone Company and the Southwestern Telephone Company were valid claims and dissolved, the injunction granted herein as to said claims, and found and held that the following claims are invalid because they were for purposes not authorized by the Constitution, to wit, increase in the Governor’s salary: The Driskill Hotel Company’s claim for chicken salad, olives, almonds, coffee, sugar, meat, lettuce, waiters, helpers, punch, etc.; Tobin’s Book Store claim on account of printing invitations, etc.; Maerki’s Bakery claim for bread, etc.; Excelsior Meat Market claim for meat; Bryant Brothers’ claim for horseshoeing; W. J. Foster’s claim for fruits, vegetables, etc. The Consumers’ Fuel & Ice Company claim for ice was by the court below held to be invalid, and an injunction heretofore granted in this ease was perpetuated as to such claims.”

Middleton alleged in Ms original petition that said appropriation was illegal and void because it was an attempt to increase the compensation of the Governor of Texas, which was contrary to section 5 of article 4 of the Constitution of the state of Texas. This article of the Constitution reads as follows:

“Sec. 5. [Governor’s .Salary and Mansion.] He shall, at stated times, receive as compensation for his services an annual salary of $4,000.-00, and no more, and shall have the use and occupation of the Governor’s mansion, fixtures and furniture.”

Later, by amended petition, he alleged that the appropriation was illegal because unconstitutional for the following additional reasons:

Because in violation of section 3 of article 8 of the state Constitution, which is as follows:
“Taxes shall be levied and collected by general laws and for public purposes only.”

And because in violation of the following portion of section 51 of article 3 of the state Constitution:

“The Legislature shall have no power to make any grant, or authorize the making of any grant, of public money to any individual, as>-sociations of individuals, municipal or other corporations whatsoever.”

And because said appropriation is in violation of section 3 of article 1 of the state Constitution, which is as follows:

“All free mem, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

Among other defenses pleaded by Terrell, who was defendant in the district court, and who is plaintiff in error here, in his motion to dissolve the temporary injunction, was that each item of indebtedness shows on its face to be a debt against the state created prior to said writ of injunction by the authority of article 4342 of the Revised Civil Statutes of Texas, and by the authority of the appropriation bill, passed by the Thirty-Third Legislature, appropriating money for the following purposes, to wit:

“Fuel, lights, water, ice, groceries, and incidentals for the Governor’s mansion and grounds.”

And that the Legislature of the state of Texas had prior to the issuance of the injunction passed upon the legality of said indebtedness, and that the same is not now subject to review by a co-ordinate branch of the government. Also it is contended by the plaintiff in error, Terrell, in the petition for writ of error, that the items of the indebtedness, the payment of which is sought to be restrained, were authorized by that portion of section 48, article 3, of the state Constitution, which provides that the Legislature shall have the right to levy taxes and impose burdens upon the people in the “payment of all officers, agents and employés of the state government, and all incidental expenses connected therewith” ; and that the items of the ' indebtedness, the payment of which is sought to be restrained, were incidental expenses of this nature.

The ruling of the trial court was as indicated in the above quotation from the statement contained in the argument of the plaintiff in error. As to some of the items, as indicated therein, the writ of injunction was granted, and as to other items, as indicated therein, the writ of injunction was denied.

Appeal was taken by Terrell, as appellant, from the judgment of the district court to the Court of Civil Appeals. There a decision was rendered adverse to the contentions of Terrell, affirming the judgment of the district court. (Civ. App.) 187 S. W. 367. The case was brought here on application of Terrell, the plaintiff in error, who sought to have the judgment of the Court of Civil Appeals reviewed, and its judgment, reversed. This court acted upon said application for a writ of error on a prior day of the present term of this court, and refused to grant the writ of error, being of the opinion that the appropriations were in violation pi the Constitution. I concurred in that view. Since that action by this court a motion for a rehearing has been presented requesting that we again consider the questions. I have reinvestigated all the questions presented, and have reached a different conclusion upon some of them. I now incline to the view that the appropriations were not in violation of the Constitution, for reasons which I will indicate herein, and I believe that justice will be promoted by granting the writ and submitting the case for a full hearing upon oral argument by attorneys for both sides of the controversy. Justice cannot suffer by such a course, and I can see no good reason for denying to the parties a full hearing upon oral argument.

Does section 5, article 4, of the state Constitution, quoted above, which provides that the Governor shall “receive as compensation for his services an annual salary of $4,000.00, and no more, and shall have the use and occupation of the Governor’s mansion, fixtures and furniture,” mean to prohibit the Legislature from appropriating at its will other perquisites than the “use and occupation of the Governor’s mansion, fixtures and furniture”? And does the use of the phrase “and no more” amount to such prohibition? As I understand it, the expression “and no more” relates entirely to the Governor’s salary. He shall receive “an annual salary of $4,000.00, and no more,” clearly means and no more salary. That is its plain, grammatical, unambiguous meaning. Its grammatical sense should be followed in construction unless a different meaning clearly appears by the use of the words employed. Section 408, Lewis’ Sutherland Statutory Construction. Such grammatical meaning is clearly recognized by the petition of Middleton, which specifically alleges that said appropriation is “an attempt to increase the compensation of the Governor of Texas.” It might be noticed here that not a word of evidence was introduced by Middleton to prove such ulterior purpose and motive on the part of either the Legislature which passed the appropriation, or of Governor Colquitt in using the money appropriated. -

But it is argued by attorneys for Middleton that the portion of said section which provides “and shall have the use and occupation of the Governor’s mansion, fixtures and furniture” is exclusive, and prohibits the Legislature from granting to the Governor any other perquisites than the ones mentioned. This is undoubtedly the general rule. The maxim “Expréssio unius est exclusio alterius” is generally followed as a rule of construction, but like all rules it has many exceptions. One of the exceptions is that “if there is some special reason for mentioning one, and none for mentioning a second which is otherwise within the statute, the absence of any mention of the latter will not exclude it.” Section 495, Lewis’ Sutherland Statutory Construction. A special reason existed, perhaps, for mentioning the use and occupation of the Governor’s mansion, fixtures, and furniture, in the fact that the state owned this property, and the members of the constitutional convention wished the Governor of Texas to occupy the mansion rather than to live in private quarters; they wished him to live, not in the plain simple residence of an humble citizen, but in the Governor’s mansion, in order to live in keeping with the exalted office of Governor of a great state. No such special reason existed for the mention of other perquisites of a similar nature. As indicating that the members of the constitutional convention did not wish to exclude other perquisites, there stands out prominently in the proceedings of the convention the fact that after section 5 of article 4 of the Constitution, as it now exists, had been agreed upon, Mr. Crawford, one of its members, offered the following resolution:

“He [the Governor] shall receive no fees or perquisites or extra compensation, for ther performance of his duties connected with his office.”

This resolution is shown to have been lost, Journal of the Constitutional Convention, page 287. Neither the expression “and no more” following the salary provision, nor the clause which provides “and shall have the use and occupation of the Governor’s mansion, fixtures and furniture,” could possibly be given the effect of excluding all other kinds of appropriations for the Governor, because the Constitution itself clearly provides in section 48 of article 3 for the payment of all incidental expenses connected with the office of Governor, and with the state government. All this, it seems to me, makes the question one of grave doubt as to whether the mention of the use and occupation of the mansion, fixtures, and furniture excluded all other perquisites, and amounted to a clear command to the Legislature not to appropriate any similar perquisites, or any perquisites to the Governor, but to restrict him entirely to the salary of $4,000 per year.

It is an unbroken rule of authority, and it will not be contended by any one to the contrary, that the Legislature would have unrestrained power to appropriate all kinds of perquisites to the Governor unless there is a clear command by the Constitution itself for the Legislature to refrain from so doing. Unless there is a plain “thou shall not” in the Constitution the Legislature may act at its own discretion, and according to its o.wn wishes. It occurs to me that section 5 of article 4 is not such a command. Especially is this true when section 48 of article 3 affirmatively authorizes the Legislature to levy taxes and impose burdens upon the people “to raise revenue sufficient for the economical administration of the government.” This unreservedly commits to the discretion of the Legislature all appropriations which in its opinion the Legislature considers necessary for the economical administration of the government. It is therefore a matter of discretion with the Legislature as to what appropriations they will make for the administration of the government, except where the Constitution has specifically provided a limitation upon the exercise of such discretion.

If the Legislature’s act was valid, and directly authorized by the portion of section 48 of article 3, which provides for the payment of “all officers, agents and employes of the state government, and all incidental expenses connected therewith,” then it inevitably follows that the other sections of the Constitution relied upon by the defendant in error, and quoted herein, to render the appropriation in question unconstitutional, cannot possibly be given effect.

The question then turns upon the legality of the appropriation by the Legislature to cover the incidental expenses complained of. And in considering that question we are brought at once to the consideration of the question as to whether the judiciary, a coordinate branch of the government, can revise the discretion once exercised by the Legislature, another co-ordinate branch of the government. Many well-recognized authorities hold to the view that the courts have no power to inquire into or revise the decision of the Legislature upon a question where it has exercised its discretion, there being nothing upon the face of the act passed by them to show their act to be repugnant to some provision of the state Constitution. Upon this question Ruling Case Law, a standard authority, volume 6, § 112, says:

“The constitutionality of a law is not to be determined on a question of fact to be ascertained by the court. If under any possible state of facts an act would be constitutional, the courts are bound to presume the facts exist; and therefore the courts will not make a separate investigation of the facts, or attempt to decide whether the Legislature has reached a correct conclusion with respect to them.”

Also see sections 109, 110, and 111, volume 6, Ruling Case Law. Also see Cyc. vol. 8, pp. 727, 736, 737, and 738.

To the same effect is the holding of this court in the case of March v. State, 44 Tex. 79, in which this court, speaking through Mr. Associate Justice Ireland, said:

“It is a principle that has become axiomatic that, when a discretion is confided to any one branch of the government, a decision by that department upon that particular point cannot be questioned or revised.”

It must also be considered that in passing the appropriations which are attacked the Legislature was compelled to pass upon the facts in order to determine whether the items appropriated were incidental expenses of the Governor or connected with the state government, or whether they were in fact the private expenses of the Governor, and not connected with him as an officer or with the state government as such. Can the courts inquire into the facts when the Legislature, a co-ordinate branch of the government, has done so, and decide the question of fact and take action thereon? Every person knows that the higher courts may revise questions of fact decided by juries and judges, because this is authorized by the Constitution. .But there is no constitutional provision which authorizes the courts to inquire into and revise the findings of facts by the Legislature. One cannot appeal from an adverse ruling upon the facts by the Legislature, to the courts for redress. When it is appropriate for the Legislature to consider the facts while passing legislation their finding upon such facts is final. The rule is well stated by the author of Ruling Case Law, vol. 6, § 111, which is as follows:

“On frequent occasions the constitutionality of a statute depends on the existence or nonexistence of certain facts. In view of the presumption in favor of the validity of statutes, it must be supposed that the Legislature had before it when the statute was passed any evidence that was required to enable it to act; and if any special finding of fact was needed in order to warrant the passage of the particular act, the passage of the act itself is treated as the equivalent of such finding. The validity of legislation which would 'be necessary or proper under a given state of facts does not depend on the actual existence of the supposed facts. It is enough if the lawmaking body may rationally believe such facts to be established. Under the American system of government by the people through their chosen representatives, practical legislation admits of no other standard of action. The fact that the finding of the Legislature is in favor of the truth of one side of a matter as to which there is stiff room for difference of opinion is not material. What the •people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. It has been said that any other basis would conflict with the spirit of the Constitution, and woiild sanction measures opposed to á Republican form of government. As a general rule, therefore, it may be stated that the determination of facts required for the proper enactment of statutes is for the Legislature alone, that the presumption as to the correctness of its findings is conclusive, and that the courts do not have jurisdiction or power to reopen the question or make new findings of fact.”

Also see section 84, vol. 6, Ruling Case Law, and section 497, vol. 2, Lewis’ Sutherland Statutory Construction.

But the contention by the defendant in error is, as shown in the quotation herein made from his petition, that the appropriation was made for the purpose of increasing the Governor’s salary to a sum in excess of $4,000. Can the purpose, design, and motive of the Legislature in passing a bill, or of Governor Colquitt in using the funds appropriated, be inquired into? Can the courts go behind an act of the Legislature to inquire into the motives which prompted members of the Legislature, or the motives which prompted individuals, in instigating such legislation? Undoubtedly they cannot. The rule is stated in volume 6, § 110, Ruling Case Law, thus:

“If a statute appears on its face to be constitutional and valid, the courts cannot inquire into the motives of the Legislature, or the intention of.those who enacted it, except to the extent that these may he disclosed on the face of the acts, or inferable from their operation.”

Also see sections 109, and 111, and see section 497, Lewis’ Sutherland Statutory Construction.

Returning to the question whether the appropriation which is attacked is in violation of section 5, article 4, of the Constitution, which covers the salary question, I call attention to the fact that every Legislature which has convened since the adoption of the Constitution, in the passing of appropriation bills, has construed said article of the Constitution as not prohibiting the granting of benefits and perquisites to the Governor of the state. The first Legislature after the adoption of the 'Constitution appropriated $100 per year for “gas for the Governor’s mansion,” and a similar appropriation has been carried by every Legislature which has convened since the adoption of the Constitution. The second Legislature which convened after the adoption of the 'Constitution appropriated $400 per year for gardener, $2,000 per year for wood, lights, etc., and $200 contingent fund each year for the mansion. These appropriations in almost the identical language have been carried in every appropriation bill of every Legislature since. In 1881, and in 1883, the Legislature appropriated $500 for each of the two years for “labor to keep executive mansion, and grounds in order, and other contingent expenses.” This item has been carried in every appropriation bill of each Legislature since the adoption of the Constitution. In 1884 ’ an appropriation was made for telephones, and that item has been constantly carried in all appropriation bills by subsequent Legislatures. In 188T, $100 was appropriated for water for the mansion. That item has uniformly been carried by every Legislature that has convened. During Governor Ross’ administration the Legislature appropriated for freight, postage, and telegraphing for the Governor’s mansion $800 per year, and in addition $300 per year for contingent expenses. During Governor I-Iogg’s administration the Legislature appropriated $125 each year for water and ice for the Governor’s mansion, $20 for repairing and tuning the piano, and $300 contingent expenses each year. Under Governor Culberson’s administration, which was one of the most economical administrations had in Texas, $1,000 was appropriated for postage and telegraphing; $3,000 for Govern- or’s mansion and furniture, including repairs to mansion and grounds; $1,000 for gardener and labor in keeping up grounds; $400 for water and lights for mansion; $600 for housekeeper for mansion; $900 for fuel and lights; $400 contingent expenses. The appropriations mentioned, or some such similar appropriations, have been constantly carried, as asserted by counsel for the plaintiff in error, in every appropriation bill since the Constitution was adopted.

This amounts to a legislative construction of section 5, article 4, of the Constitution, as not prohibiting that character of appropriations for the mansion and grounds. The Legislature so construed it in every session from the time of its adoption by the constitutional convention in 1876 until the present time. The courts of the country uniformly hold that such a legislative construction is of gi’eat value in passing upon the constitutionality of a law where the question involved is doubtful. Lewis’ Sutherland Statutory Construction, § 472. In the case of Trigg v. Pennsylvania, 41 U. S. 639, 10 L. Ed. 1000, the United States Supreme Court, speaking through Mr. Justice Storey, said:

“If the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would in our judgment entitle the question to bo considered at rest; unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole process of legislation and of national operations. Congress, the executive and the judiciary, have, upon various occasions, acted upon this as a sound and reasonable doctrine.” Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825.

To the same effect was the holding of the United States Supreme Court in the case of United States v. Philbrick, 120 U. S. 52, 7 Sup. Ct. 413, 30 L. Ed. 559, where it was said:

“A contemporaneous construction by the officers upon whom was imposed the duty of executing those statutes is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned.”

But almost, if not quite, the exact question has been passed upon by the Supreme Courts of other states as applied to constitutional provisions to the same substantial effect as section 5, article 4, of our state Constitution. And in each instance the question has been decided by the Supreme Courtsi of other statés contrary to the contention of the defendant in error, Middleton, in this case.

Under the Constitution of Pennsylvania members of the Legislature were only allowed mileage and per diem, and no more. In 1897 the dedication ceremonies of the monument to General Grant were held in the city of New York. The Legislature of Pennsylvania, by concurrent resolution, provided that they should attend such celebration in a body. This they did, at the expense of the state, which expense was covered by appropriation from the state treasury. A suit similar to this one was instituted ia which it was contended that the appropriation covering their expenses was unconstitutional in that it constituted additional compensation to the members of the Legislature, in violation of the constitutional provision which, after providing for their mileage and per diem, used the phrase “and no more.” The Supreme Court of Pennsylvania overruled such contention, and held that such expenses did not constitute additional compensation, and in passing upon the question it said:

“It is conceded by the learned-and able counsel for appellee that the payment of the expenses may not be technically compensation; and yet, by the process of reasoning through which they would have us declare it to be compensation, within the constitutional prohibition, the very ink furnished to Senators and members, and the pens dipped into it answering the daily inquiries of constituents, would have to be regarded as constitutionally unlawful compensation to them, if paid for by the state.”

A similar question was pased upon by the Supreme Court of Nebraska, in the case of State v. Sheldon, 78 Neb. 552, 111 N. W. 872. Suit was brought to recover for rent for the use and occupation by the Governor of the mansion. The contention there, as here, was that the use and occupation of the Governor’s mansion was not authorized by the Constitution which limited the Governor’s salary to $2,500 per year, and that the effect of his free use of the government’s property amounted to an increase in his compensation to the extent of $100 per month, the reasonable value of the rent of said premises. The Supreme Court of Nebraska held that the Governor was not liable, and that the use and occupation of the mansion was not an increase in his compensation.

The Constitution of the United States fixes the President’s salary as follows:

“The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.”

Yet it is well known that Congress has each year appropriated thousands upon thousands of dollars for expenses of the President of the nature and kind here attacked, and other such expenses of a different kind taking a much wider range in the kind and quality of expenses appropriated than do the appropriations here attacked. As is well known, the Congress of the United States has at all times been composed in a large measure of great constitutional lawyers. Their action in making such appropriations covering so long a period of time amounts to a legislative construction of the federal Constitution that to allow such expenses does not increase the President’s compensation or provide him with “other emolument.”

It seems to me that the most that could be claimed on the question of the unconstitutionality of the appropriation bill is that its constitutionality is in doubt. That being true, the legislative construction by Congress of a. similar provision in the federal Constitution, the legislative construction in Texas for more than 40 years by the Texas Legislatures, together with the Supreme Court decisions from Nebraska and Pennsylvania upon substantially the same question as is involved here, should be sufficient to refute the charge made in the petition by Middleton, to the effect that the appropriations here attacked were 'made by the Legislature in “an attempt to increase the compensation of the Governor of Texas.” And since no evidence at all was introduced to prove such dishonest purpose either upon the part of the Legislature which made the appropriation, or upon the part of Governor Colquitt, who accepted its benefits, I am unable, with the lights before me, to reach the conclusion that such purpose and design in fact existed upon the part of either. Neither do I believe that any court has the right to inquire into the evil .motives and purposes of the Legislature. I think the courts are restricted to the construction of the act itself, and to the language employed in it. I therefore conclude that the writ should be granted, and the case heard upon full oral argument upon submission, to the end that the doubts involved may be resolved with justice to the litigants.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    HOLLOWAY v. STATE.
    (No. 4359.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1917.
    Rehearing Denied March 28, 1917.)
    1. Affidavits <&wkey;>2 — Authority to Take— Motion for New Trial.
    • Where affidavits attached to motion for new trial were sworn to before attorney who defended accused, they will not be considered on appeal.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 5-15.]
    2. Criminal Law <&wkey;939(8) — Motion fob New Trial — Newly Discovered Evidence —Diligence.
    Where witnesses for whose testimony a new trial is sought were present at trial or could have been easily secured, and defendant’s wife knew of their presence at the time the alleged_ sale of liquor was made, defendant’s statement' that such witnesses refused to talk to him, and that he did not know of their testimony, does not show sufficient diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2319.]
    Appeal from District Court, Lamar Coun-' ty; Ben H. Denton, Judge.
    Kelso Holloway was convicted of pursuing the business of selling intoxicating liqtiors in local option territory, and appeals.
    Affirmed.
    W. E. Calvin, of Paris, for appellant. E. B. Plendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convict* ed of pursuing the business of selling intoxicating liquors in local option territory; his punishment being assessed at three years’ confinement in the penitentiary.

There are no bills of exception in the record. There are two affidavits attached to the motion for new trial setting up some equitable grounds why a new trial should be awarded. It is unnecessary to discuss them for the reason they were sworn to before the attorney who defended appellant in the trial court. Under the decisions of this court this is not permissible.

But in any event, the testimony shows that one or more of the defendant’s witnesses, and among others his wife, knew of the presence of the two affiants at her husband’s house at the time the two sales were made. These sales occurred at different times. Both affiants say they were present at the time, but practically deny the sales. They were not placed upon the stand as witnesses. Appellant in his motion for new trial states under oath that he did not know he could prove these facts by the witnesses; that one or perhaps both of them refused to talk to him or his counsel in regard to the transaction. One of the affiants, Mr. Strickland, states in his affidavit that he was present and would now testify that the state’s witness, who was with him, did not state the facts as they occurred at the time of the alleged purchase. In other words, his testimony would go to show that such a purchase did not occur. He was present at the trial, but not used. Dowd, the other affiant, could have been secured. These witnesses could have been used during the trial as fully shown by this record. Appellant's wife proved an alibi for him at the time of the alleged sale, but shows Strickland was present at the time one of the witnesses states he bought it. Under all of these circumstances we do not believe there was sufficient diligence shown, and that the affidavits in any event could not be used because sworn to before appellant’s attorney. It is unnecessary, we think, to sum up the testimony. The state made a ease of sufficient importance and strength to justify the verdict.

Finding no reversible error in the record, the judgment is affirmed.
      <Szs>For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte PATTERSON.
    (No. 4403.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    3. Bail &wkey;>45 — Right to Bail.
    Where a life sentence after indictment and conviction for murder had been set aside, the case standing as if it had not been tried, the accused was entitled to bail.
    [Ed. Note. — For other cases, see Bail, Cent. Di’g. § 146.] .
    2. Bail &wkey;>49 — Right to Bail — Burden of Pboof.
    The burden of proof is on the state to show a nonbailable case.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 195-208, 241, 244.]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    Proceeding by N. C. Patterson for admission to bail.
    Judgment reversed, and bail granted.
    Simpson & Estes, of Ft. Worth, and Martin & McDonald, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

There is no statement of facts in the record with reference to the evidence attending the homicide for which appellant was arrested. The meager statement we have shows with sufficient certainty, we think, that he had been indicted and had been previously convicted by the verdict of the jury and given a life sentence. This was set aside, and the case stood as if it had not been tried. So we have the case presented without the facts attending the homicide. This entitles defendant to bail. The burden of proof is on the state to show a nonbailable case, and it was not so undertaken in this ease by the state. The case stands as if it had never been tried, and without a statement of facts before us. The judgment refusing bail will be reversed, and relator will be permitted to give bond in the sum of $5,000. Upon the giving of this bond in the terms and under the requirements of the law, he will be discharged from custody.

The judgment is reversed, and bail granted in the sum of $5,000.


text:
    PARTRIDGE v. STATE.
    (No. 4354.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.)
    Fish &wkey;>15 — Seining—Sufficiency of Information.
    Under a statute (Pen. Code 1911, art. 870) prohibiting catching fish by nets or seines without the consent of the owner of the lake, etc., and Code Cr. Proc. 1911, art. 457,_ specifying how ownership shall be alleged, an information and complaint charging seining without the owner’s consent, but not giving his name, is insufficient.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 27-30.]
    Appeal from Throckmorton County Court; A. H. King, Judge.
    J. A. Partridge was convicted of seining fish contrary to statute, and appeals. Judgment reversed, and prosecution ordered dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The complaint and information charge appellant with taking, catching, ensnaring, and entrapping fish by means of nets and seines and by muddying, ditching and draining in a pond without the consent of the owner of such pond.

The complaint and information fail to allege the name of the owner of the waters said to have been netted or seined. The .statute (Pen. Code, art. 8,70) provides that the waters netted or seined must be so done without the consent of the owner. Wherever ownership enters into the definition of an offense, the name of the owner must be alleged. It is unnecessary, we think, to cite particular cases or make quotations. The statute (article 457, of the Revised O. O. P.) makes such provision, and the authorities holding that the name of the owner must be alleged will be found collated in the notes in Vernon’s Ann. O. C. P., under article 457. It seems to be the settled law in Texas that all constituent elements contained in the definition of the offense must be charged in the complaint and information; if not, the offense is not' charged. This was called to the attention of the trial court in a timely and proper way and overruled. In this there was error. The complaint and information are not sufficient.

The judgment will therefore be reversed, and the prosecution ordered dismissed.
      <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    PORTER v. STATE.
    (No. 4391.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.)
    Criminal Law <&wkey;1099(6) — Appeal and Error-Review — Statement op Facts — Piling.
    On appeal from conviction of crime in county court, a statement of facts filed more than 20 days after adjournment of trial court presents nothing for review, notwithstanding that the trial court by order allowed 30 days after adjournment for filing such statement, and that such statement was filed within 30 days.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2877.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Earnest Porter was convicted of adultery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of adultery, and assessed the lowest penalty, a fine of $100.

The term of court at which he was convicted convened September 4th and adjourned for the term December 2, 1916. Appellant was tried and convicted October 3d. His motion for new trial was overruled October 21st, at which time he "gave notice of appeal to this court and entered into a recognizance, and on that date the court entered an order allowing 30 days after adjournment to file a statement of facts. The court could not grant longer than 20 days. The statement of facts herein was not filed until December 30th, 28 days after adjournment.

This court has uniformly and in a great number of decisions held that longer than 20 days after adjournment cannot be given, and even though the court enters an order allowing 30 days, no statement of facts filed after 20 days can be considered. It is unnecessary to collate the great number of these decisions, but see De Friend v. State, 69 Tex. Cr. R. 329, 153 S. W. 881, and cases cited therein ; Cranfill v. State, 189 S. W. 482; Hamilton v. State, 189 S. W. 482.

Nothing is presented which can be reviewed in the absence of a statement of facts.

The judgment is therefore affirmed.
      &wkey;5Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FREEMAN v. STATE.
    (No. 4381.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    1. Criminal Law <&wkey;1184 — Appeal—Judgment — Amendment—Conpormitt to Verdict.
    In prosecution under indictment in two counts charging assault with intent to murder and assault to commit robbery where the jury applied the verdict to the first count, a judgment, applying the verdict to the second count, will be amended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200.]
    2. Criminal Law i&wkey;1099(6) — Appeal—Bills op Exception — Time to File.
    Bills of exception filed 80 days after pronouncement of sentence are too late and cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2877.]
    3. Homicide <&wkey;257(l) — Assault with Intent to Murder — Evidence—Suppicienct.
    Evidence held sufficient to sustain conviction of assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543, 544, 552.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Ray Freeman was convicted of an offense, and appeals.
    Amended and affirmed.
    E. L. Fulton, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. .
   DAVIDSON, P. J.

The indictment contains two counts, the first charging an assault with intent to murder, and the second charging an assault to commit robbery. The verdict was applied by the jury to the first count. The judgment on the verdict, as shown by the minptes, applied the verdict to the second count, which was wrong. The judgment will be amended so as to apply to the first count. The final judgment shows the court sentenced defendant for assault to murder and rob. That will be amended so as to conform the sentence to the verdict and judgment as amended.

There are two bills of exception in the record, neither of which can be considered. The court lasted over eight weeks; the sentence was pronounced on the 11th day of November. This required the filing of the bills of exception within 30 days from the final sentence, without an order extending the time. This was not done, and the bills of exception were not filed until in February, something like 80 days after the pronouncement of sentence. Under the decisions this comes too late, and the bills of exception cannot be considered. The. motion of the Assistant Attorney General to strike the bills from the record will be sustained.

This leaves but one question, to wit, the sufficiency of the evidence, to be considered. The state’s case shows that appellant made an assault upon the alleged injured party and shot him twice. There is evidence enough to have convicted, perhaps, under either count of the indictment, but the jury confined their verdict to the first count, assault to murder. Appellant assaulted the injured party at night. He came upon him, caught him by the hand, and made demands upon him, and Norris undertook to get away from him and was shot twice at close range. We think the evidence is sufficient to justify the verdict, and the judgment will be affirmed.


author: MORROW, J.

text:
    COLF v. STATE.
    (No. 4378.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    Criminal Law <&wkey;1020 — Appeal—Jurisdiction — Extent op Penalty.
    Under Code Cr. Proc. 1911, art. 87, limiting the jurisdiction of the Court of Criminal Appeals, prescribed by article 86, by providing that such section shall not be construed so as to embrace cases appealed from justices’, mayors’ or other inferior courts to the county court, and in which the judgment rendered or fine imposed by the county court shall not exceed $100, exclusive of costs, and that in such cases the judgment of the county court shall be final, where there is a trial de novo in the county court on appeal from the corporation court of a city, and the punishment is fixed at a fine of less than $100; the Court of Criminal Appeals is without jurisdiction on appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2578-2580.]
    Appeal from Dallas County Court at Law; T. A. Work, Judge.
    Harry A. Coif was convicted of an offense, and he appeals.
    Appeal dismissed.
    William H. Atwell, of Dallas, for appellant. C. E. O’Donnell, of Dallas, Grady Nib-lo, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged with unlawfully exhibiting a moving picture in the city of Dallas without the written permission and approval of the authorized censor of commercialized amusements, contrary to the ordinances of the city of Dallas. He was tried in the corporation court, and appealed to the county court, and there tried upon an agreed statement of facts and convicted; his punishment being fixed at a fine of $50.

Article 86 of the Code of Criminal Procedure provides that the appellate jurisdiction of the Court of Criminal Appeals shall be coextensive with the limits of the state in all criminal cases of whatever grade. Article 87, however, limits this jurisdiction as follows:

The preceding section shall not be so construed as to embrace cases which have been appealed from justices,’ mayors’ or other inferior courts, to the county court, and in which- the judgment rendered or fine imposed by the county court shall not exceed one hundred dollars, exclusive of cost. In such cases, the judgment of the county court shall be final.”

This statute has often been construed, as will appear by the list of cases cited in Vernon’s Code of Criminal Procedure under article 87 at page 47. The latest case noted upon the subject is Grigsby v. State, 183 S. W. 143.

It has been held in the case of Matula v. State, 72 Tex. Cr. R. 189, 161 S. W. 965, that, where there is no trial de novo in the county court, and where the complaint is that the appellant was illegally deprived of such a trial on his appeal from the corporation court to the county court, this court will have jurisdiction to review the proceedings. But it has been uniformly held in cases mentioned above that, where there is a trial de novo in the county court, and the punishment is fixed at a fine of less than $100, this court is without jurisdiction on appeal from such judgment. The statute mentioned and the construction thereof referred to controls the action of this court, and its jurisdiction in this case is denied.

We are without authority to pass on the important questions discussed in the briefs on file, but must, in obedience to the statute, dismiss the appeal; and it is so ordered.
      <tex>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. PRENDERGAST, J. MORROW, J.

text:
    BORDERS v. STATE.
    (No. 4385.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.)
    Assault and Battery <&wkey;56 — Threatening with a Dangerous Weapon.
    Under Pen. Code 1911, art. 1013, making the use of a dangerous weapon, or the semblance thereof, in a threatening manner with intent to alarm another and under circumstances calculated to effect that object, an assault, the thing done must have been unlawful, and done in an angry or threatening manner, and with intent to alarm.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Ben Borders was convicted of assault, and appeals.
    Reversed and remanded.
    Clyde E. Winn, of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The complaint and information charge appellant with having committed with a deadly weapon an aggravated assault upon Arthur McDonald. The court submitted aggravated assault, simple assault, and also gave a definition of assault committed by the use of a dangerous weapon, or the semblance thereof, in an angry or threatening manner, with, intent to alarm another, under circumstances calculated to effect that object.

The state’s case was made by the testimony of Arthur McDonald and his brother, R. B. McDonald. Their testimony is practically the same. Substantially stating the main facts in regard to the trouble, Arthur McDonald testified:

That while he and his brother were walking down a street in Waxahaehie they met defendant in front of the residence of Mrs.. J. B. King, a white woman, and witness asked him if he was going to pay the money that he owed the two brothers, who were in the grocery business; that he said he did not have any money; he had been sick. R. B. McDonald asked him why he did not come around last Saturday as he had promised, and appellant said he did. come around. “My brother said, ‘No, you didn’t, and Ben said, T did.’ My brother said, ‘Ben you didn’t come around last Saturday, and don’t you say you did again.’ At that time Ben was standing about ten feet from _us up the sidewalk; that is, we were between him and the direction of town.” The McDonalds turned to walk towards town, and just as they turned they heard appellant say, “I haven’t paid you a God damned cent, and I am not going to pay you a God damned cent.” The McDonalds turned and looked at him, and saw that he had a large knife open in his hand, having it grasped tightly and was “holding his hand kind of out from his side in a rigid manner.” That he said, “If you’ll come back here I will cut your God damned guts out,” at the same time raising his knife in a striking attitude and advanced a step or two in their direction, and that he (Arthur McDonald) said, “Stop Ben, you stop right there,” and he stopped, and Ms brother said, “Let’s get him,” but as they did not have anything he said to his brother, “No we haven’t got anything to get him with. Let’s go to town and have him arrested.” They went to town and reported the matter to the officers.

This witness further states they made no attempt to assault appellant.

Mrs. King, who saw the whole matter, testified that she saw the McDonalds talking to appellant on the sidewalk in front of her house. She was standing in the front door of her house at the time and heard them talking for a few minutes, and appellant started off backing up the street, and the two Mc-Donalds followed him for about ten feet. There were about ten feet between appellant and the McDonalds while they were following him. The McDonalds were talking to appellant but were not making any movement toward him, or making any attempt to strike him, that she could see. The McDonalds then turned to go down the street, and as they turned appellant drew a knife out and held it in his hand open, and said he had not paid them anything, and was not going to pay them anything. The McDonalds then went towards town. Appellant stood on the sidewalk and watched them until they turned the corner; after they disappeared the witness turned and saw a negro coming down the street toward town; he had not quite reached the sidewalk in front of her premises when she first saw him. At the time defendant pulled his knife he was about ten feet from the McDonalds; he did not throw the knife at them or attempt.to strike them with the knife; he was saying something, but witness could not understand what it was.

Flowers testified that he was coming down the street and saw defendant some distance down the sidewalk talking to the two Mc-Donalds who ran a grocery store in Wax-ahachie. He saw the McDonalds following appellant northeasterly up Kaufman street. Defendant was backing away from them, and they were following along after him. The defendant backed away from them for a distance of about twenty steps. The witness did not understand what was being said, but heard the voices. ' The McDonalds started away from defendant, and after they had gotten away from him about ten steps they turned and started back toward defendant, who ran his hand in his pocket and drew out something; witness thought it was a knife he drew out. At this time the McDonalds were still going toward defendant, but when he drew out this knife they stopped. At the time they stopped they were within ten feet of him. He did not throw the knife at either of them, nor did he strike at them or either of them.

Defendant testified:

That he met the McDonalds, who asked Mm if he was going to pay them what he owed them. He said if he owed them anything he would pay it, but that he. did not owe them anything; that he had paid his half of the account due at their store; that the other negro who was appellant’s partner at the time the account was made owed them the other half, and they would have to look to him for the balance; that both of the Mc-Donalds appeared to be mad, and their manner was threatening. Appellant said he began backing away from them down the street, and they followed after him; then they turned to go away, and after they had gone about ten steps from me “I said to them, ‘If I did owe you anything I would not pay you now on account of the way you have just treated me.’ Then Mr. Arthur McDonald said to his brother, R. B. McDonald, ‘Let’s get him,’ and they turned to walk back to me. I then drew out my knife. They approached until they got within about ten feet of me, and then they stopped. I did not strike at either of them with the knife. I did not throw the knife at either of them. I was never close enough to either of them after I drew the knife to strike them with it. After I pulled out the knife they were never closer to me than ten feet. When I drew out the knife I held it down by my side. I did not draw it in a striking position, but held it down by my side, with it very slightly drawn back. When I got out the knife they went away and let me alone.”

Shortly afterwards he was arrested. He testified on cross-examination that he had been arrested charged with using abusive language, but did not have to fight the case; it was dismissed. About the time they dismissed that case this charge of aggravated assault was filed against him in the county court. This, substantially, is the case as shown by the testimony.

Exception was reserved to that portion of the court’s charge wherein the court charged the jury that if they had a reasonable doubt whether it was an aggravated assault or simple assault, they would acquit him of aggravated assault and find Mm guilty of simple assault, on the ground that there was no evidence to support the charge. Another exception was reserved to that part of the charge wherein the following language was used:

“But the use of any dangerous weapon, or the semblance thereof, m any angry or threatening manner, with intent to alarm another, that under circumstances calculated to effect that object, comes within the meaning of an assault.”

This was based on the ground that there was no evidence justifying or supporting that charge. These exceptions were also carried forward in bills of exception. The court qualifies the exception with reference to the use of a dangerous weapon as follows:

“The testimony shows in the latter part of witness Arthur McDonald’s testimony that defendant raised the knife in a striking attitude and advanced toward us a step or two, and I said, ‘Ben, you stop right there.’ Relying on this testimony of the witness Arthur McDonald, the court thought that the rule laid down in Brister v. State, 40 Tex. Cr. R. 506, 51 S. W. 393, the excerpt complained of was proper.”

Special instruction was asked, as follows:

“To constitute an assault by alarming a person, the thing done must first be unlawful, and must be done in an angry or threatening manner, and with intent to alarm.”

This was refused, and timely exception reserved. We think the charge with reference to using a dangerous weapon with intent to alarm was not called for by the evidence, but if so it was by reason of the fact that the information charged appellant with making the assault with a deadly weapon. This was the ground relied upon to constitute aggravated assault. The statute provides that the use of a dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm, etc., constitutes an assault, and this has been held to constitute only a simple assault. Under the case of Trimble v. State, 57 Tex. Cr. R. 439, 125 S. W. 40, we are of opinion that the charge complained of should not have been given. This quotation is taken from the Trimble Case:

“Now, article 592 of the Penal Code, in speaking of ‘coupled with an ability to commit,’ states it is meant: (1) ‘That the person making the assault must be in such a position that, if not prevented, he may inflict a battery upon the person assailed. That he must be within such distance of the person so assailed as to make it within his power to commit the battery by the use of the means with which he attempts it. (3) It follows that one who is, at the time of making an attempt to commit a battery, under such restraint as to deprive him of the power to act, or who is at so great a distance from the person assailed as that he cannot reach his person by the use of the means with which he makes the attempt, is not guilty of an assault. But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.’ Then in order to constitute an assault by alarming a person, the thing done must first be unlawful; must be done in an angry or a threatening manner, and with intent to alarm. There may be an intent to alarm, and not be unlawful.”

In the case of White v. State, 29 Tex. App. 530, 16 S. W. 340, this court said:

“To constitute an assault with a dangerous weapon with intent to alarm, the use of the weapon must be unlawful which necessarily signifies aggressiveness and offensiveness. If the weapon is used in lawful self-defense, its use does not constitute an assault. The facts must show a present unlawful purpose to alarm another.”

In order to constitute an assault under this phase of the statute, the weapon used must: Eirst, be a dangerous weapon, or the semblance thereof; second, it must be done in an aggressive, not in a defensive, way; third, it must be done in an angry or threatening manner, with intent to alarm; fourth, and the circumstances must be such as were calculated to effect that object. P. C. 1013. Unless these concur this phase of the statute is not violated. There was no evidence before the trial court that the weapon used was a dangerous one. It was a knife, and one of the witnesses said a large knife. The weapon must not only be such as denounced by the statute, but this must be shown by the testimony. From this viewpoint the court was in error in charging on the use of a dangerous .weapon for the purpose of alarming; but having given this charge, the court should have given appellant’s requested instruction. It is unnecessary to discuss this view of the ease, unless upon another trial it should be shown by the evidence that the weapon was a dangerous one, or had the semblance of being a dangerous one. As has been stated by this court in the cases above cited, the exhibition of the weapon must be unlawful or aggressive. There is no evidence showing it was a dangerous weapon, and there is evidence showing that the knife was exhibited as a matter of defense against the approach of the adversary. The court below qualifying the bill states he gave the charge under the holding in Brister v. State, 40 Tex. Cr. R. 505, 51 S. W. 393. We are of opinion that case is not in point on either proposition. An inspection of that case show's that the defendant approached his adversary rapidly and in a threatening way, and when within a few feet of him drew and presented his pistol at the party. It is unnecessary to discuss that case as being in point here. The Brister Case was properly decided.

The judgment will be reversed, and the cause remanded.

PRENDERGAST, J.

In my opinion the exhibition of the pocket knife was in fact and in law the exhibition of a dangerous weapon. However, I concur in the reversal on account of the refusal of said special charge.

MORROW, J.

I concur in the reversal of the case on account of the failure to give the special charge discussed, but I express no opinion on the other question involved.


text:
    STANLEY v. STATE.
    (No. 4352.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    1. Homicide @=>300(13) — Offenses—Instructions.
    In a prosecution for murder, where defendant relied on self-defense, and the court in submitting that issue qualified the right by charging that mere verbal provocation was no justification, and defendant had explained his possession of 1lie gun which he was carrying, the refusal of a charge instructing the jury as to defendant’s right to arm himself and to investigate the conduct of deceased, whom he deemed about to forcibly enter upon his premises, was reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 628.]
    2. Homicide @=>300(13) — Trial — INSTRUCTIONS.
    In a prosecution for murder, a charge submitting the issue of self-defense which omitted accused’s testimony of a hostile demonstration and limited the defense to verbal statements by deceased was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 628.]
    3. Criminal Law @=>448(12) — Trial — Evidence.
    In a prosecution for murder, where it appeared that deceased had threatened ;foreibly to take possession of a house belonging to accused, and that deceased’s statement that he had an instrument in a box worth $25 was communicated to accused, the witness who heard the statement, but did not explain to accused the inference he deduced therefrom, should not, accused having testified that he deemed the instrument to be a weapon, be allowed to give his interpretation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1042.]
    4. Witnesses @=>344(1) — Impeachment — Character and Conduct — Particular Acts.
    In a prosecution for murder, evidence that one of accused’s witnesses failed to attend his wife’s funeral is inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1125.]
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    O. Q. Stanley was convicted of murder, and he appeals.
    Reversed and remanded.
    F. Y. Hughes, Jr., and Jas. M. Edwards, both of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Indicted for the murder of Thurston Bobbitt, appellant was convicted; the jury fixing his punishment at confinement in the penitentiary for 17 years.

Appellant owned a farm upon which there was located, besides his dwelling, a tenant house, which up to a few days before the homicide was occupied by appellant’s son, D. n. Stanley, and his family. Forrest Owens owned an adjoining farm, and kept a store, which was situated about 300 yards south from appellant’s tenant house. The deceased for some two months prior to the homicide lived in a covered wagon which stood near Owens’ premises. There was evidence that on three several occasions deceased had approached appellant upon the subject of occupying his tenant house as soon as appellant’s son, D. H. Stanley, should vacate it. Appellant on each occasion had declined to give deceased permission to occupy his house. A few days before the house was vacated deceased stated to Dale, a witness, that he had tried to rent the tenant house two or three times from Mr. Stanley, that Stanley would not let him have it, hut that he (deceased) was going to move in the house as soon as Dave Stanley moved out, and that it would take six months to get him out by law, and added: “I have got a $25 instrument there, and he cannot put me out by himself.” At the time deceased made this statement he pointed to a box 16 or 18 inches square which he had in his possession. Appellant was informed of this conversation about a week before the homicide. Early in the afternoon of the day before the homicide deceased moved his wagon from the Owens’ premises to an open space on appellant’s land in front of the tenant house. Appellant saw the wagon there on the same afternoon and learned from Owens that it was deceased’s wagon. There was testimony that appellant had been informed that Mrs. Owens had said that the deceased had tried to get her children to steal for him. On the morning following the removal of deceased’s wagon to appellant’s premises the homicide took place. The only eyewitnesses were the appellant and the wife of the deceased.

Mrs. Bobbitt testified:

That she and her husband were in the wagon and saw appellant coming across the field from the direction of the house in which a negro by the name of Jim Mitchell lived. “When he got up to the wagon, he just spoke to us like he had been doing. When he spoke to us my husband and I were getting out of the wagon, and when I got out he spoke to me. He stopped about midways of the wagon from the front to the back end. The first thing that was said was just, ‘Good morning.’ I do not remember who spoke first, but Mr. Stanley just said, ‘Good morning, Mr. Bobbitt; good morning, Mrs. Bobbitt;’ and we just said, ‘Good morning, Mr. Stanley,’ at the time my husband was getting out of the wagon. When my husband got out he put his hands in Ms front pants pocket. I don’t know that I could say exactly the first thing that was said either by my husband or Mr. Stanley after my husband got out of the wagon, but Mr. Stanley said that he did not want nobody around that would steal. My husband told him that he did not steal. He said that was not the way he was making, his living-stealing. He said he worked for his money and bought what he wanted. He said he just moved up there on account of Forrest Owens wouldn’t let him stay; that Jim Mitchell had promised him a team to move down to another house next morning; that it was raining, and he couldn’t go any further. Mr. Stanley said that Forrest Owens’ boy had been stealing money and things out of the store and giving it to my husband. My husband said he did not do it. He said he had never seen nothing that had been got out of the store and no money neither. Mr. Stanley said that Rice Owens told Dave Stanley that he had been stealing money and giving it to Thurston. When Mr. Stanley said that my husband replied that he never give him no mon■ey. Mr. Stanley said, ‘Do you say that my boy lied?’ or ‘Don’t you say that my boy lied,’, and at that time he shot. When Mr. Stanley said, ‘Don’t you say my boy lied,’ my husband did not make any reply to that. He never said nothing else, only when Mr. Stanley said, ‘Don’t you say my boy lied,’ he said, ‘I didn’t say your boy lied; I said that Eorrest’s boy done the lying,’ and then the killing took place. During all this conversation my husband’s hands, were in his pockets; both of his hands wei*e in his front pockets. At the time Mr. Stanley shot, my husband’s hands were in his pocket, and he never made a move to take them out.”

There was testimony that the deceased had a pocketknife, but no other arms.

Appellant testified that he was in the habit of carrying his gun loaded with No. 4 shot; that he took it with him to work during the fall of the year to shoot birds and rabbits; that on the morning of the homicide he started to Jim Mitchell’s house about a business transaction, taking his gun with him to hunt on the way; that, finding that Mitchell had gone to Tyler, and observing the wagon still in front of his tenant house, and having some fodder and feedstuff, peas, on the premises and some collards in the garden, he concluded to go and see what was going on. He said:

“When X got up in front, I just said, ‘Good morning, Mr. Bobbitt, Mrs. Bobbitt.’ They were in the wagon, and I spoke as I went around the end of the tongue. I passed on the right hand side between the wagon and my wire fence, and when we spoke I just said, ‘Well, it looks like, Mr. Bobbitt, you intrude on me anyhow.’ He gave me no answer, and I made a few steps towards the front gate of my yard and toward the back end of the wagon. As I got about to the hind wheel, he got out of the wagon, and hit his feet against something; caused me to turn. He was coming right back of me, and when 1 turned he stopped, some seven or eight feet from me. (Appellant indicated that he was carrying his gun with the muzzle down on account of the rain.) I said, ‘Mr. Bobbitt, I will give you my whys that 1 don’t want to be bothered; it may be a lie or it may be the truth, but Mrs. Owens told my wife that you and your wife put her children up to stealing from them, and X don’t care about being bothered with any such beings.’ And I reckon it made him mad. 1-Ie run his- hand down in his pocket, and I could see he looked awful vengeousness, and when he done that he started with his hand sort of worked up, and he just said, ‘You are a God damned lying son of a bitch,’ and he run his hand in like he was going to come out with a weapon in his hand. I thought he was going to shoot me or cut me to pieces. I thought about the $25 instrument. I didn’t know, so I just throwed myself like I showed you a while ago, just throwed my gun. I thought about it -all together — I didn’t know what he had — and fired. Mrs. Bobbitt was in the wagon; had not gotten out at the time when I fired.”

The court submitted the issues of manslaughter and self-defense as well as murder, and also submitted the issue of provoking the difficulty, and of the latter complaint is made by proper and timely exceptions upon the ground that the evidence failed to raise th'at issue. The fourteenth paragraph of the court’s charge followed that submitting the issue of provoking the difficulty, and we quote it, as follows:

But you are further instructed that no assault or homicide is justified by any merely verbal provocation; and so in this case, if you find from the evidence beyond a reasonable doubt that the defendant shot and killed deceased merely because of verbal provocation given to Mm by the deceased, if any you find there was, then if such killing was upon the malice aforethought of the defendant, he would be guilty of murder, and if such killing was committed by defendant under the immediate influence of sudden passion arising from an adequate cause rendering his mind incapable of cool reflection, as hereinbefore explained, he would be guilty or manslaughter.”

Objection to the paragraph quoted was also properly made, and the appellant requested, and the court refused, the following special charge:

“The court instructs you that, if on the occasion of the killing the defendant apprehended that the deceased might move into his vacant house, the defendant had the right to pass the front of deceased’s wagon, and carry his gun, and go upon his premises where the killing occurred to ascertain whether the deceased had moved into said vacant house or seemed about to do so, and the mere fact that he did so, if you believe from the evidence that he did, would not impair or affect his right of self-defense as against the deceased.”

The issue of provoking the difficulty was raised. Having qualified the appellant’s right to act in self-defense, we think the court was in error in failing to inform the jury as to the law with reference to appellant’s right to arm himself, particularly in view of the fact that appellant had undertaken to explain the possession of his gun at the time of the homicide, and we think that this would have been accomplished by reading to- the jury appellant’s special charge quoted above, and that its refusal was error, requiring the reversal of the case.

It is said in Fox’s Case, 71 Tex. Cr. R. 318, 158 S. W. 1143, that when the issue of self-defense is raised, and the court in submitting it-restricts it by submitting the issue of provoking the difficulty, the law of this state undoubtedly requires the court to also inform the jury that appellant’s arming himself and seeking the deceased for the purpose of explanation will not deprive him of his right of self-defense. The same rule is applied in Mason’s Case, 183 S. W. 1156, and in Shannon’s Case, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17; Melton’s Case, 47 Tex. Cr. R. 458, 83 S. W. 822. The cases are numerous in this state holding that such a charge is required where the, issue of self-defense is raised and is limited by a charge on provoking the difficulty. Branch’s Crim. Law, § 466, and cases cited; Branch’s Ann. P. C. p. 1091, and cases cited.

The fourteenth paragraph of the charge, quoted above, further limits appellant’s right of self-defense. It singles out the verbal provocation, ignoring the testimony showing a hostile demonstration accompanying the words of deceased (Craiger v. State, 48 Tex. Cr. R. 505, 88 S. W. 208), and is further defective in the particular that it fails to submit the converse of the proposition contained in. it, viz. appellant’s right to shoot if the deceased did threatening acts as well as using provoking words, indicating that he was in danger of death or serious bodily harm. Lundy v. State, 59 Tex. Cr. R. 136, 127 S. W. 1032. It is not attacked upon this ground, but it should not be given in the form quoted on another trial.

Complaint is made of the action of the court in permitting the witness Dale over appellant’s objection to testify on the witness stand to his interpretation of the language used by deceased and quoted hereinabove, wherein he referred to a $25 instrument. Dale testified that he inferred from the statements of the deceased that he meant to put up as a pawn the instrument contained in the box. The statement made by the deceased was communicated to appellant without information as to the inference that Dale drew from it. Appellant testifies that this information was in his mind at the time, of the homicide in connection with the demonstration which he claimed that the deceased made. We think this testimony was inadmissible and probably harmful to the appellant. Branch’s Ann. P. C. pp. 1080, 1081; Green v. State, 49 Tex. Cr. R. 238, 90 S. W. 1115; Martin v. State, 42 Tex. Cr. R. 144, 58 S. W. 112.

While we cannot say that the admission of the evidence that appellant’s witness Owens had failed to attend his wife’s funeral was of sufficient importance to require a reversal of the ease, it should on another trial be excluded.

The assignment relating to the application for a continuance refers to matters which will not arise on another trial. The other assignments have been considered, but do not present reversible error.

For the reasons hereinabove indicated, the judgment of the lower court is reversed, and the cause remanded.
      @r=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    HAYS v. HINKLE.
    (No. 1678.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1917.
    On Rehearing, March 15, 1917.)
    1. Trespass to Try Title <§u>40(4) — Evidence — Documents—Admissibility.
    In trespass to try title, where plaintiff claimed under a deed which had previously in another action been held valid, the description of which applied on the ground to the land sued for, the deed was admissible.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 57, 61.]
    2. "Trespass to Try Title <@=40(1) — Evidence — Admissibility — “Documentary Evidence op Title.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7743, provides for demand for abstract in writing of the claim of the land on which plaintiff in suit in trespass to try title claims. Article 7746 provides that in all cases the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of title. Article 7745 requires the abstract to state the liature of each document intended to be used as evidence, and its date and where recorded. Article 3708 provides for certificate of the comptroller showing payment of taxes. Plaintiff, in •action in trespass to try title, after demand, offered an abstract showing a deed, setting up the statute of limitation of 3, 5, and 10 years, and offered in evidence the comptroller’s certificate of the assessment and payment of taxes. Held, that as “documentary evidence of title” means only such character of writing as relates to title, claim, or interest in the land, and as assessment and payment of taxes can be shown by parol evidence, a tax receipt being merely evidence of payment, such certificate of the comptroller was admissible, without being embraced in the abstract of title offered.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 55.
    For other definitions, see Words and Phrases, First and Second Series, Documentary Evidence.]
    3. Adverse Possession @==>115(4) — Necessity op Possession — Payment op Taxes — Question por Jury.
    Where taxes were paid by plaintiff's ancestor from 1877 to 1883, inclusive, but possession was maintained only to the year 1879, inclusive, it was error to submit the issue of adverse possession under the 5-year statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 695.]
    4. Infants @=>24 — Adverse Possession.
    The statute of limitations of 10 years does not begin to run against the cláims of persons who, when the possession was commenced, were minors.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 25.]
    5. Infants <@=>24 — Adverse Possession.
    The 10-year statute of limitations begins to run against the wife of the other claimant when possession commences, and is not legally stopped by the disabilities of her heirs, to whom her title descended.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 25.]
    6. Husband and Wipe <@=69% — Adverse Possession.
    Where the 10-year statute of limitations did not begin to run against one heir, owing to her disability of coverture, but on her death the land descended to her coheirs, the statute began to run only when the land was cast by her death.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 294, 300.]
    On Rehearing.
    7. Adverse Possession <@=82 — Color op Title — Deed—Necessity op Registration.
    Under Vernonls Sayles’ Ann. Civ. St. 1914, art. 5676, providing that peaceable and adverse possession, as against the person having right of action, shall be construed to embrace not more than 160 acres, including the improvements or the number of- acres actually inclosed, should the same exceed 160 acres, but when such possession is taken and held under some written memorandum of title, other than a deed, which fixes the boundaries of the possessor’s claim and is duly registered, such peaceable possession shall be construed to be coextensive with the boundaries specified in such instrument, it is not necessary. that the deed be registered.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468-471.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.

      Action by A. B. Hinkle against J. J. Hays. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered. Motion for rehearing overruled.
    This is an action in trespass to try title to 315 acres of land, brought by appellee against appellant. The plaintiff alleged and relied upon the statute of 5 and 10 years limitation for title. The defendant answered by plea of not guilty, and averring in defense against limitation the minority and the coverture of the heirs of Alexander Nevill, deceased. The case was submitted to the jury on the two special issues of the 5-year and 10-year statute of limitation, and the finding was in favor of the plaintiff. The evidence on the part of the appellant shows that on December 28, 1855, a patent was issued to the heirs of Alexander Nevill for 315 acres of land in Titus county. Alexander Nevill died June 26, 1854, and left surviving him his wife and 10 children. Mrs. M. A. Hays, a daughter, was married in 1854, and was a married woman until 1907; Thomas Nevill, a son, was born in 1838; A. J. Nevill, a son, was born April 7, 1841, and died February 28, 1906; Alexander Nevill, Jr., a son, was bom in 1854, and died in 1907; Mrs. Mary Brooks, a daughter, was married in 1858, and died in 1861, leaving a son named Zack; Mrs. Nancy Carter, a daughter, died without issue July 20, 1869; Mrs. Julia Broadus, a daughter, was married in 1869, and died in 1876, leaving a son named Bas-com; Mrs. Sarah Rowland, a daughter, married in 1867, and her husband died May 12, 1874; Mrs. Martha Brooks, a daughter, was married in 1868, and was a married woman until 1900; W. F. Nevill, a son, was born in 1845. The wife of Alexander Nevill died October 15, 1868. On December 3, 1906, the surviving heirs of Alexander Nevill executed a conveyance of the 315 acres of land to James J. Hays, the appellant. The evidence on the part of appellee shows that on August 30, 1860, Wyngate Truitt executed a conveyance of 315 acres of land to T. B. Mc-Reynolds. The evidence authorizes the finding of fact, as involved in the judgment of the court, that the 315 acres so conveyed was the Alexander Nevill survey. The said deed to McReynolds as a fact lacked 29.6 acres of covering the land described in the petition. This deed was acknowledged and then filed for record in the clerk’s office on December 3, 1860. T. B. McReynolds died in February, 1870, leaving surviving him three children. The wife died in 1867. On December 3, 1882, two of the surviving children executed a conveyance of the 315 acres to Minnie McRey-nolds, the other surviving child, who is the wife of the appellee. This deed was acknowledged on March 25,1884, and then placed of record in the Deed Records of the county on June 12, 1902.
    The Z. Brooks survey adjoins the Alexander Nevill survey on the west, and at the time of the deed from Wyngate Truitt to him T. B. McReynolds had a farm on the Brooks survey and claimed to own it. There is evidence to show that in October, 1860, there were a double log house and some negro cabins on the land deeded by Truitt to T. B. McReynolds, and 7.28 acres of the land was cleared. T. B. McReynolds and his family, it appears, lived in the double log house, and he had the land cultivated and claimed to own the premises. After the death of T. B. McReynolds in February, 1870, the land was occupied and cultivated by tenants of the surviving children. There is evidence to show that the 7.28 acres of land was occupied and cultivated continuously by tenants of the children until and through the year 1879. The evidence does not show use or occupancy of the land after the year 1879. The land was assessed in the name of T. B. Mc-Reynolds and taxes were paid thereon by him from 1862, inclusive, to 1869. There is evidence authorizing the finding that taxes were paid on the land by the heirs of T. B. McReynolds in 1874 and for the years from 1877, inclusive, to 1883, inclusive, and, except the years 1884 and 18S5, to 1910. T. B. McReynolds in his lifetime, and his heirs, have claimed to own the land from 1860 to date of trial. Excluding the time from January 28, 1861, until March 30, 1870 (when the statutes of limitation were' suspended by law)', the appellee’s wife and those under whom she claims have had and held peaceable and adverse possession of the land, claiming it under and to the extent of the field notes of the deed in evidence, cultivating and using said land that was cleared for 10 years, from October, 1869, to and including 1879. The evidence shows five years’ payment of taxes on the land, from 1877, inclusive, to 1883, inclusive, but does not show possession after the year 1879. The evidence warrants the finding of fact that there was not five years’ possession of the land concurrent with payment of taxes thereon by appellee and those under whom she claims after March 30, 1870. Limitation did not run against the interest of Mrs. M. A. Hays, Mrs. Mary Brooks, Mrs. Julia Broadus, and Mrs. Martha Brooks, or any of the heirs of Alexander Nevill, deceased, except Thomas Nev-ill. Limitation began to run against the one-half interest of Mrs. Elizabeth Nevill. The judgment of the court authorized plaintiff to recover an undivided seven-ninths interest in the land.
    Mahaffey, Keeney & Dalby, of Texarkana, and B. Rolston, of Mt. Pleasant, for appellant. S. P. Pounders and J. M. Burford, both of Mt. Pleasant, and Burdett & Connor, of Paris, for appellee.
   LEVY, J.

(after stating the facts as above). [1 ] By the first assignment of error it is contended that the court erred in admitting in evidence the deed from Wyngate Truitt to T. B. McReynolds, of date August 30, 1860. It is thought that this deed is not void, as was heretofore ruled, for insufficiency of description of the land. Hinkle v. Hays, 162 S. W. 435. And there is evidence tending to show that the description of the land purported to be passed by the deed applies on the ground to the land sued for. Therefore this assignment, and also the second assignment of error, are overruled.

The appellant made a statutory demand, before the trial of the case, of appellee for an abstract in writing of the claim or title to the land in suit upon which he relies. Article 7743, Yernon’s Sayles’ Stat. Appellee filed an abstract, which, besides stating certain deed, stated “statute of limitation of three, five, and ten years — that is to say, possession from 1860 to 1885 — as contemplated by the statute.”- And appellee offered in evidence, over appellant’s objection thereto, a certificate of the comptroller stating, as shown by the records of his office, the assessment for taxes of the Alexander Nevill survey for the years 1855 to 1869, inclusive, and also tax receipts issued by the tax collector for the years 1878 to 1910, with the exception of the years 1884 and 1885. The appellant predicates error upon the ruling of the court, because the certificate of the comptroller and the tax receipts of the tax collector were not included nor given in the abstract filed. The statute provides (article 7746) that:

“In all eases the documentary evidence of title shall, at the trial, be confined to the matters contained in the abstract of titles.”

And the “documentary evidence of title,” as used in the article, is meant to apply, we think, only to such character of writing as relates to title, claim, or interest in land. For according to the language of the statute (article 7745) the abstract of title shall state:

“(1) The nature of each document or written instrument intended to be used as evidence, and its date,” and “(3) Where recorded, stating the book and page of the record.”

As, for instance, besides conveyances or contracts to convey, a power of attorney (Smith v. Powell, 5 Tex. Civ. App. 373, 23 S. W. 1109), a will (Martin v. Kosmyroski, 27 S. W. 1042), a lease (Hayes v. Groesbeck, 69 S. W. 237), a deed of trust (Skov v. Coffin, 137 S. W. 450), and the like, in the chain of title. And as a muniment of right, title, or interest in the chain of title is required to be shown by the writing itself, and is a subject-matter of registration, the abstract of title should embrace such “documentary evidence of title.” But such mere matters of fact as assessment of land for taxes and the payment of taxes are authorized to be shown by parol evidence, and are not required to be proven by any writing itself. A tax receipt is merely evidence of a verbal fact of payment of the tax. McDonough v. Jefferson County, 79 Tex. 535, 15 S. W. 490. And the certificate of the comptroller, made competent evidence by statute (article 3708), is but a convenient way for the production of evidence of mere matters of fact of assessment of land for taxes and payment of such taxes. Hence tax" receipts and a certificate of the comptroller that the assessment of land for taxes and the payment of such taxes are shown by the records of his office are not such writings as by the terms of the statute are required to be embraced in the abstract of title.

It is thought the evidence shows adverse possession under the deed in evidence, and occupancy and cultivation of a part of the land on the part of T. B. McKeynolds from October, 1860, to his death in February, 1870, and by his heirs through tenants from February, 1870, to and through the year 1879. This would complete the 10-year statute of limitation, after excluding the period of time limitation was suspended by law. Consequently the court did not err in submitting this issue to the jury. But, excluding the evidence of Mrs. M. T. McKeynolds, which the court should have done, we think, upon the ground of being hearsay, there is not evidence, we conclude, to present the issue of the 5-year statute of limitation, and therefore the court erred in submitting this issue to the jury, for the evidence shows payment of taxes from 1877, inclusive, to 1883, inclusive, with possession of the premises only appearing to the year 1879, inclusive.

And as the five-year statute of limitation has not application to the case, then the interest of the heirs of Alexander Nevill, deceased, except Thomas Nevill, would not in the record be barred of recovery by appellant, holding their interests by deed; for such heirs, except Thomas Nevill, were, according to the undisputed proof, under the disabilities, respectively, of coverture and minority in October, 1860, when the adverse possession of the land was begun by T. B. McKeynolds. But as adverse possession of the land was begun by T. B. McReynolds in October, 1860, the interest of Thomas Nevill, who was of age at that time, would be barred under the 10-year statute of limitation, as found by the jury to be complete. And the one-half community interest in-the land of Mrs. Elizabeth Nevill, wife of Alexander Nevill, would be barred by the 10-year statute of limitation, for she was living in October, 1860, when adverse possession was begun by T. B. McKeynolds. The adverse possession so begun against Mrs. Nevill was not legally stopped by the disabilities of her heirs to- whom her title descended. Johnson v. Schumacher, 72 Tex. 339, 12 S. W. 207. And since it appears that Mrs. Nancy Carter died without issue in 1869, after her mother, then all her interest would go equally to her brothers and sisters. But the interest of Mrs. Nancy Carter so inherited by her brothers and sisters would not be barred by limitation, as shown by the record; for, as limitation had not begun to run; against her at the time of her death, it would not begin to run against her interest until it was cast by descent. And as to her interest the 5-year statute was not shown to exist.

We hare considered the other assignments, and do not think they present reversible error. They are therefore overruled. As the statute of 10-year limitation was, as found by the jury, complete, the one-half interest in the land of Mrs. Elizabeth Nevill, and the interest of Thomas Nevill, which was one-twentieth of the whole,' were barred, .and appellee was enabled to recover the same. The interest of Thomas Nevill, inherited by him on the death of Mrs. Nancy Carter, .would not be barred by the 10-year statute of limitation. And as the five-year statute of limitation has not, in the evidence, application, the interest of all the other heirs of Alexander Nevill, deceased, would not be barred by limitation, and the appellant is entitled to recover the same.

Therefore the judgment of the district court is reversed, and judgment is here rendered in favor of appellee, in virtue of the ten-year statute of limitation, for eleven-twentieths, and in favor of appellant, in virtue of his deed, for nine-twentieths of the land in suit as described in the deed to Mc-Reynolds. The costs of appeal will be taxed against appellee.

On Rehearing.

It is insisted that the deed under which the limitation of 10 years is claimed was not filed for record until December 3, 1860, and therefore appellee may not recover to the extent of the deed. It is believed that article 5676, Vernon’s Sayles’ Statutes, does not require that a deed be registered. Craig v. Cartwright, 65 Tex. 423; Simpson Bank v. Smith, 52 Tex. Civ. App. 349, 114 S. W. 445; Bringhurst v. Texas Co., 39 Tex. Civ. App. 500, 87 S. W. 898. In the latter case the court overruled the former cases of Doom v. Taylor, 79 S. W. 1086, and Watts v. Bruce, 31 Tex. Civ. App. 347, 72 S. W. 200. The findings of fact requested are corrected and made to appear in the original opinion. The judgment of the court does not include fieldnotes, further than given in the deed to McReynolds.

Motion for rehearing overruled.
      @=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes