text:
    LANDON v. HALCOMB.
    (No. 8330.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 19, 1916.)
    1. Alteration or Instruments <@=>9 — Note— “Alteration.”
    Where the plaintiff’s assignor and defendant, parties to a contract or order with a note attached, intended and understood that the note was not to be detached, its detachment for the purpose of negotiations was a material “alteration” of the note.
    [Ed. Note. — Eor other eases, see Alteration of Instruments, Cent. Dig. §§ 47-53; Dec. Dig. <@=>9.
    For other definitions, see Words and Phrases, First and Second Series, Alteration.]
    2. Bills and Notes <@==>378 — Bona Fide Holder — Defense—Alteration of Note.
    A material alteration of a note precludes any claim on the part of the holder to protection as an innocent purchaser for value without notice. „
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 985-992; Dec. Dig. <@=> 378.]
    3. Bills and Notes <@=>520 — Sufficiency or Evidence — Fraud .
    Evidence in a suit on a note detached from a written contract or order executed by defendants and plaintiff’s assignor, held to sustain a finding that the contract or order had been obtained fo>r the fraudulent purpose of getting possession of the note and realizing on it by transfer to a third party.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. <@=>520.]
    4. Bills and Notes <@=>525 — Sufficiency of Evidence — Bona Fide Purchaser.
    Evidence in such suit held to sustain a finding that the plaintiff was not an innocent purchaser of the note before maturity without notice of any defense thereto.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. <@=> 525.]
    5. Evidence <@=>75 — Presumption—Failure to Produce Evidence.
    The failure of a party to produce evidence within his control raises the presumption that if produced it would operate against him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 95; Dee. Dig. <@=>75.]
    6. Bills and Notes <@=>525 — Good Faith-Circumstantial Evidence.
    In an action in a suit on a note, the issue of the plaintiff’s bad faith in its purchase, like the issue of his assignor’s fraud in obtaining it, could be established by circumstantial evidence.
    [Éd. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. <@=> 525.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Action by A. C. Landon against V. 8. Hal-comb. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. E. Carswell, of Decatur, for appellant. Ratliff & Spencer, of Decatur, for appellee.
   DUNKLIN, J.

Y. S. Halcomb, the proprietor of a drug store in the town of Bridgeport, gave a written order to the Vernon Advertising Company of Schell City, Mo., for a piano, a set of silver, fountain pens, and advertising matter to be shipped by the company to Halcomb, and attached to the order was Halcomb’s promissory note, payable to the advertising company, or order, for $400. The note and order were on the same piece of paper, but were separated by a perforated line. The order reads as follows:

The Vernon Advertising Company, of Schell City, Mo.
Pianos Direct From the Factory.
Town, Bridgeport. State, Texas. 6/23/1914.
County, Wise. Post Office, Bridgeport, Tex.
Gentlemen: Upon approval of this order, please deliver to me at your earliest convenience, f. o. b. factory or distributing point, the goods described in this order, with the understanding that this is to be the exclusive order for this town, I or we understand that this order cannot be countermanded. This order shall contain the following goods:
1 piano (guaranteed for 10 years).
2,500 duplicate tickets.
250 piano circulars.
250. nomination letters.
1 piano stool.
288 fountain pens.
250 pen circulars.
Merchant’s instructions.
1 26 pc. silver set.
250 silver set circulars.
2,500 trade cards.
Contestants’ instructions.
Price $400, Payable Five Payments.
We guarantee the sale of 288 fountain pens at $1.50 each by the close of the contest: Provided, the contest is run at least 26 weeks from opening date according to the advertised plans as per regular printed circulars furnished by the Vernon Advertising Company and awards all prizes accordingly, reports the gross sales of pens each 30 days, during the contest and makes each and every payment on the date or within 5 days from the date when due. In case the undersigned should for any reason desire to close the contest before all the pens have been sold, then the Vernon Advertising Company agrees to purchase all pens remaining unsold. The undersigned hereby accepts the above conditions and agrees that failure on his part to fulfill any of the above conditions will and does hereby release the Vernon Advertising Company, of Schell City, Mo., from any liability on this contract.
We hereby appoint the undersigned as agent for the Vernon Piano at Bridgeport, Texas, and agree to pay him a commission of $50.00 on all sales made at the regular retail price of $350.00, or through said agent, commission payable out of the first money received from such sale. No other agreements or conditions not embraced in this regular printed form will be accepted or recognized. This order is taken in duplicate.
[Signed] V. S. Halcomb.
By B. Kupton, Representative.

It appears that these documents were executed by Halcomb in pursuance of an advertising scheme suggested and proposed by a traveling agent of the advertising company.

The present suit was instituted by A. C. Landon, residing at St. Louis, Mo., against Halcomb upon the note so executed which had been detached from the written order. The plaintiff alleged that he was an innocent purchaser of the note for value before maturity, and from a judgment in favor of the defendant, the plaintiff has appealed.

The evidence showed beyond controversy that the defendant received 144 of the fountain pens and practically all the other articles mentioned in the order, except the piano and stool; and that defendant, in pursuance of the advertising scheme planned and arranged by the company, advertised to give away the piano and other articles as prizes; that the piano and stool never reached Bridgeport in time to he used in accordance with such advertising, although the defendant made repeated demands therefor; that later the piano did arrive at Bridgeport, consigned to shipper’s order, hut that the advertising company failed and refused to send defendant any bill of lading for said piano, and in the absence of which the defendant was unable to get it, and in consequence of which the defendant never received it.

The case was submitted to a jury upon special issues, and the jury found that the articles received by the defendant were of no value; that the advertising company at the time said contract was made did not intend to comply with its contract to ship the goods mentioned in the order; that the company entered into the contract for the fraudulent purpose of getting possession of the notes and realizing thereon by transferring the same to some other person. The jury further found that the plaintiff, Landon, was not a purchaser of the note in the usual course of trade and in good faith for value, and that at the time he purchased it he had notice that the same was given as a consideration for the obligation contained in the written order referred to above, and that the advertising company had obtained the note for the fraudulent purpose of cheating defendant. The .jury further found that it was the intention of the parties to said note and written order at the time those instruments were executed and delivered that the same were to remain attached, together, as they were attached when executed, and to remain so until the obligations of both parties were fully complied with, and that the note was detached from the order without defendant’s consent. The jury further found that at the time plaintiff purchased the note he had notice that the same had been attached to said order when those instruments were executed and delivered, and that the same had been detached without the consent of the defendant. They further found that the goods mentioned in the order, and for which the note was given, were intended to be used in furtherance of a lottery scheme, and that plaintiff knew of that fact at the time he bought the note, and that the separation of the note from the order was a Material alteration.

The facts so found by the jury were pleaded, substantially, by Halcomb as defenses to the suit. All the findings of the jury have been attacked by appellant as being unsupported by the evidence, and the contention is made that the evidence conclusively shows that plaintiff was an innocent purchaser of the note before maturity for value without notice of any defenses thereto.

The evidence shows conclusively that the note in suit and the order for goods embodying contractual obligations on the part of the Vernon Advertising Company, as well as on the part of defendant, Halcomb, which was originally attached thereto, were parts and parcels of one contract. If at the time the contract was executed the parties thereto intended and understood that the note was to remain permanently attached to the order, as found by the jury, then it follows that the separation of the order from the note for the purpose of negotiating the note was a material alteration of the note which precluded any claim on the part of plaintiff that he should be protected as an innocent purchaser and holder of the note for value without notice of any defense thereto. Baldwin v. Haskell Nat. Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; 1 Ruling Case Law, p. 990; 2 Corpus Juris. 1176 and 1210; Rochford v. McGee, 16 S. D. 606, 94 N. W. 695, 61 L. R. A. 335, 102 Am. St. Rep. 719. And this is true notwithstanding the fact that the order was attached to the note by a perforated line, thus rendering the separation of the two instruments in such a manner as possibly to mislead the purchaser of the note. Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382; First Nat. Bank v. Dorsey, 166 S. W. 54; Bothell v. Schweitzer, 84 Neb. 271, 120 N. W. 1129, 22 L. R. A. (N. S.) 263, 133 Am. St. Rep. 623.

We are of the opinion, further, that the evidence was sufficient to support the findings referred to above, and also the further finding by the jury that plaintiff was not an innocent purchaser and holder of the note. While testimony introduced by plaintiff to refute the latter finding was positive in terms, yet there were circumstances which tended to show the contrary and which presented more than a mere suspicion that such testimony was untrue. The purchase of the note in St. Louis, Mo., within three days after its execution, in Bridgeport, Tex., for an admitted discount of 12i/2 per cent., the failure of plaintiff to show how the indebtedness for which the note was further discounted, as claimed by plaintiff, arose, his failure to show what, if any, investigation he made to determine the solvency of the maker of the note before he purchased it, his implied denial of a lifelong and intimate acquaintance with Boatwright, the manager of the Vernon Advertising'Company, as established by several disinterested witnesses residing in Schell City, Mo., and his further implied denial that he was in the habit of making frequent trips to Schell City where Boatwright conducted the business of payee of the note, as testified to by several of the same witnesses, were some of the circumstances which tended to impeach the alleged good faith of plaintiff in the purchase of the note.

Pertinent to the failure of plaintiff to explain fully the discount of the principal of the note in his purchase and his failure to explain what investigation, if any, he made with respect to the solvency of the maker before he purchased the note, we wish to cite the familiar rule that a failure of a party to produce evidence within his control raises the presumption, under circumstances like the present suit, that if produced it would operate against him. Mitchell v. Napier, 22 Tex. 120; G., H. & S. A. Ry. v. Young, 45 Tex. Civ. App. 430, 100 S. W. 903.

The issue of bad faith in the purchase of the note, like the issue of fraud, could be established by circumstantial evidence.

The findings of the jury indicated above were decisive of the whole case in favor of appellee, and therefore the judgment is affirmed.

Affirmed.
      @s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. HICKS et ux.
    (No. 1598.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 16, 1916.)
    Death <§=399(5) — Damages—Excessive Damages.
    In an action by surviving parents, about 65 years old, for the death of their son of 22, where it appeared that plaintiffs were farmers and stock raisers, worth about $30,000, that deceased was skilled in such business, and when at home had helped them in their business and household work, that he was considerate of their health, and had called a physician to see them, and had stated that he intended to remain unmarried while his mother lived, a verdict of $3,500 was excessive, and a remittitur of $2,-400 called for.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125, 126, 130; Dec. Dig. <$=399(5).]
    Appeal from District Court, Hunt County; A. P. Doboney, Judge.
    Action by W. F. Hicks and wife against the Gulf, Colorado & Santa F6 Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed conditionally, upon filing of a remittitur; otherwise, reversed, and cause remanded.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. B. Q. Evans and H. L. Carpenter, both of Green-ville, for appellees.
   LEVY, J.

This is an action by the parents for the death of their son, 22 years old, who was killed in the wreck of a freight train due to appellant’s negligence. At the time of the wreck the son was in the employ of the appellant as a brakeman, and was on top of one of the cars forming the train. The petition averred, and there is involved in the verdict of the jury the finding, that the wrecking of the train was due to negligence of the appellant, proximately causing the injury, in operating the train at too great a rate of speed over track not reasonably safe because of its defective condition. There is evidence to support the finding of fact made by the jury, and we adopt such finding. The verdict is for $7,000; the trial court, though, required a remittitur of $3,500.

In the former appeal of this case (Railway Co. v. Hicks, 166 S. W. 1190) the evidence respecting the award of damages is substantially set out, which is referred to and made a part hereof. We do not think the facts of the present appeal in respect to the amount of the verdict substantially differ from those of the former appeal. In that case it was concluded that the great weight of the evidence did not justify the award of a greater amount of damages than $1,100. We have reached the same conclusion in the present appeal as in the former one, and are unwilling to approve the amount of $3,500, upon the ground that it is, in point of fact, we think, excessive.

We have considered the other assignments of error, and think they should be overruled.

The judgment in this case is reversed, and the cause remanded, unless the appellees, within 15 days, shall enter a remittitur in the sum of $2,400, in which event the judgment will then be affirmed.


author: HODGES, J.

text:
    DONALDSON v. McELROY.
    (No. 1593.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 16, 1916.)
    Appead and Ekeok <$=>499(4) — Review—Necessity oí? Objection.
    An assignment of error in giving a peremptory instruction will not be considered where the record fails to show that an objection was made and exception reserved in the trial court, as required by the statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <$=>499(4).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by E. A. McElroy against J. S. Donaldson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wood & Wood, of Dallas, and Walter Collins and B. Y. Cummings, both of Hillsboro, for appellant. Morrow & Morrow, of Hills-boro, for appellee.
   HODGES, J.

The appellee brought this suit on a promissory note for the sum of $319.50, together with interest and attorney’s fees, and sought a foreclosure of a vendor’s lien on block 66 in the town of Odessa, Tex. The appellant, after a general denial, admitted tlie execution of tlie note, but pleaded a failure of consideration and damages for misrepresentation and fraud as an. offset. At tbe conclusion of tbe evidence tbe court gave a peremptory instruction, directing a verdict in favor of tbe plaintiff for tbe amount sued for, and entered judgment, foreclosing tbe vendor’s lien.

In this appeal the only assignments of error presented are those which complain of the action of the court in giving the peremptory instruction. There was no objection made to this charge of the court, nor any exceptions reserved. It has heretofore been held by this court that assignments of this character will not be considered where the record fails to show that objections were made and exceptions reserved in the trial court, as required by the statute. Denison Cotton Mill Co. v. McAmis, 176 S. W. 621. See, also, Walker v. Haley, 181 S. W. 659, for a collection of similar rulings by other Courts of Civil Appeals. We adhere to tbe ruling referred to, and decline to consider tbe assignments of error.

There appearing no fundamental error that would justify a reversal of tbe judgment, it is affirmed.
      <$=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    OSBORNE & BECK v. SANDERS.
    (No. 1594.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 9, 1916.)
    Judgment @==>256(1) — Support by Findings.
    In suit by realty brokers for damages because of the owner’s breach of contract to give them the exclusive right to sell a tract of land for a specified time, where the finding that the owner had not so contracted was inconsistent with another, but there were other findings, denominated conclusions of law, first, that the terms upon which the owner was willing to sell had never been stated by him and communicated to the party to whom plaintiffs expected to sell, and second, that it could not be said from the evidence that such party would have been ready, willing, and able to comply with the terms plaintiffs might have imposed, judgment for defendant was proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; Dec. Dig. @=>256(1); Replevin, Cent. Dig. § 393.]
    Appeal from Navarro County Court; R. R. Owens, Judge.
    Suit by Osborne & Beck against I. A. Sanders. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Lawrence Treadwell, of Corsicana, for appellants. Richard Mays, of Corsicana, for appellee.
   WILLSON, C. J.

This was a suit by appellants, real estate brokers, for damages which they clabned they suffered because of a breach of an undertaking, they alleged, of appellee to give them for a time specified an exclusive right to sell a tract of land belonging to him, and which be himself sold before the expiration of that time. Tbe court found as a fact that appellee bad not so contracted. Tbe finding is attacked as not warranted by tbe evidence, and all of the assignments of error are predicated on tbe correctness of that contention. It is true tbe witness Watts testified to facts which might have supported a finding to tbe contrary of tbe one complained of, but tbe finding, clearly was warranted by tbe testimony of appellee. It may be that tbe finding is not consistent with another one made by the court, tbe eleventh; but tbe correctness of tbe judgment is not questioned on that ground. And if it was, and if it should be held that tbe effect of the two findings was to leave the question as to whether there was such a contract or not undetermined, tbe judgment should be sustained on other findings made by tbe court, to wit: (1) That tbe terms upon which appellee was willing to sell tbe land bad never been stated 'by appellee and communicated to Watts, to whom appellants expected to sell the land; and (2) that it could not be said from tbe evidence that Watts would have been willing, ready, and able to comply with tbe terms appellee might have imposed. These findings of fact, though among those denominated by tbe court “conclusions of law,” cannot be ignored. Trust Co. v. McCarthy, 34 S. W. 306; Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967.

Tbe judgment is affirmed.


author: HALL, J.

text:
    WESTERN NAT. BANK OF HEREFORD v. LAUGHLIN et al.
    (No. 948.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 22, 1916.
    Rehearing Denied April 12, 1916.)
    Bills and Notes @=365(2) — Bona Fide Purchasers — Equitable Estoppel — What Constitutes.
    Where the owner of a note allows it to be made to a third person and permits such third person to exercise complete dominion, one receiving the note in good faith without notice, though after maturity, is entitled as against the owner to enforce payment; the owner being es-topped.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 944, 959; Dec. Dig. @= 365(2).]
    Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.
    Action by tbe Western National Bank of Hereford against N. A. Laughlin and others. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Knight & Slaton, of Hereford, for appellant. Carl Gilliland, of Hereford, for appel-lees.
   HALL, J.

The appellant, as plaintiff below, sued N. A. Laughlin, as tbe maker of a promissory note, for $390.61, and sought to foreclose a chattel mortgage upon certain property of tbe alleged value of $500. The petition alleges that the note was executed by Eaughlin, in favor of S. S. Evants, and was thereafter indorsed and delivered by Evants to appellant bank, in the regular course of business. According to the allegations, the note was executed the 30th day of March, 1912, bearing interest at 10 per cent, from date, due in one year, and contained a provision for 10 per cent, attorney’s fees. S. J. Dodson was made a defendant, upon the ground that he claimed to he the owner of the note. Defendants answered by general denial, and specially that the defendant Dodson was the real owner of the note; that it had been originally executed for his benefit and was held in trust by Evants, the payee, which facts were known to the plaintiff! before it acquired the note. He further averred that appellant bank held the note as collateral to secure certain indebtedness due it from Evants; that in a suit in the district court of Deaf Smith county, between S. J. Dodson and S. S. Evants, that court adjudged the note to be the property of the defendant Dodson. It is also charged that appellant bank acquired the note after its maturity. By supplemental petition, the bank alleged that the defendant Dodson was estopped to claim ownership of the note by reason of the fact that he had permitted it to be executed and stand in the name of Evants as payee and had permitted Evants to handle and deal with the note as if he owned it; that on a former occasion defendant Dodson had assisted Evants in procuring the appellant to accept the note as collateral on another transaction, without disclosing the fact that he (Dodson) claimed any interest therein. It is specifically denied that the bank had any knowledge that Dodson claimed to have any interest in the note at the time it acquired the same. It is admitted that the note was acquired from Etvants as collateral to secure a note due it by Evants and alleged that Evants’ note had not been paid oft.

Only one issue was submitted to the jury, viz.:

“Did the bank know at the time it acquired the note .from Evants that the defendant Dodson claimed any interest in it?”

To this issue the jury replied in the negative. This was the only controverted issue of fact in the case. Judgment was rendered that the bank take nothing by its suit and pay all costs, and that the defendant Dodson should recover of the bank the title and possession of the note sued on.

Appellee Laughlin filed no defense to the note, but filed a joint answer with Dodson, as above stated. Under this state of the record, it is necessary to consider only one question; i. e., if the true owner of a note permits another to appear as the owner thereof, with full power of disposition over it, who transfers the possession to innocent third parties for value, are such third parties entitled to protection, even though the note be acquired after its maturity?

In the case of Kempner v. Huddleston, 90 Tex. 182, 37 S. W. 1066, the Supreme Court considered this question and reviewed the early authorities in this state apparently bearing upon it. Judge Brown used this language:

“This case does not fall within the class of cases embraced in the decision of this court in Walker v. Wilson, 79 Tex. 185, 14 S. W. 798, 15 S. W. 402, and Weathered v. Schmidt, 9 Tex. 623 [60 Am. Dec. 186], because the language used in the indorsement written upon the back of the notes is of a character which evidences ownership of the notes themselves in the person to whom they are transferred. The rule stated by Mr. Bigelow, in his work on Estoppels (page 547), is: ‘That where the true owner of property holds out another or allows another to appear as the owner of or as having full power of disposition over the property, the same being in the latter’s actual possession, and innocent third parties are thus led into dealing with such apparent owner, they will be protected; or, where others are innocently induced to acquire rights in derogation of the secret or undisclosed claims of those who caused such action, the rights so acquired are secured, whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are derived from an act of the real owner which precludes him from disputing against, them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.’ * * * The language used in the transfer of the notes from O. E. Singletary to F. M. Huddleston clearly indicates that for value paid the title is passed to Huddleston, and if Mrs. Single-tary signed this when she was a feme sole she is estopped to recover as against Kempner or his legal representatives who acted upon the appearance of title in Huddleston as shown by the indorsement.” May v. Martin, 73 S. W. 841.

While the note in question has no indorsement upon it, Dodson’s testimony without contradiction shows that with his knowledge and consent Eaughlin executed the note to S. S. Evants as payee, thus vesting Evants with absolute authority to deal with the note at his option. The jury having found the only issuable fact, viz., that the bank had no knowledge of Dodson’s ownership at the time it acquired the note in favor of the bank, the judgment should have been rendered in accordance with this finding. The judgment of the lower court is therefore reversed and here rendered in favor of the Western National Bank of Hereford, against N. A. Laughlin, for the full amount due upon the note and that S. J. Dodson take nothing.

Reversed and rendered.
      ©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS & N. O. R. CO. v. WEEMS et al.

    (No. 1566.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 2, 1916.
    Rehearing Denied March 30, 1916.)
    1. Appeal and Error <@=3237(6) — Review — Evidence to Support Jury Finding — Motion to Set Aside.
    In the absence of a motion to set aside the jury’s finding's, an assignment of error based on the insufficiency of the evidence to support them will not be considered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 1302%; Dec. Dig. <@=> 237(6).]
    2. Appeal and Error <@=»1008(1) — Review-Findings.
    A finding involved in a judgment must be treated with as much deference as if made by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3955; Dec. Dig. <@=> 1008(1).]
    3. Carriers <@==45 — Failure to Furnish Cars — Damages.
    Damages for breach of carrier’s contract to deliver cars at orchard for shipment of peaches is not to be limited to cost of hauling the fruit to the depot, where it does not appear that it could and would have been cared for if taken there, but rather the contrary.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. <@=>45J
    4. Carriers <@=>45 — Pleading—Variance— “On or About.”
    Plaintiff, alleging that “on or about” June 14th he demanded and defendant refused to furnish cars, proof that it was on that day of July is not a variance.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. <@=>45.
    For other definitions, see Words and Phrases, First and Second Series, On or About.]
    5. Carriers <@=>44 — Special Contract to Furnish Cars — Liability eor Breach.
    A carrier is liable for the consequences of its breach of contract to furnish cars within a shorter time than required by statute, though the result of inability was due to an unusual demand for cars.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. <@=>44.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by J. B. Weems and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    See, also, 165 S. W. 1194.
    John T. Garrison, of Houston, and Guinn, Imboden & Guinn, of Rusk, for appellant. Norman, Shook & Gibson, of Rusk, for appel-lees.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

The appellees instituted this suit to recover damages from the appellant for the breach of a contract to furnish them refrigerator cars upon certain dates named in the petition. It is alleged that they were joint owners of a peach orchard situated about three miles from Rusk, Tex., near th'e line of the appellant’s railroad; that on or about the 1st day of June, 1910, the appellant, through its agent Mrs. Clark, contracted with the appellees to furnish them certain refrigerator cars for the purpose of moving their peach crop. The contract provided, it is claimed, that th'e refrigerator cars should be furnished upon one day’s notice, and placed upon a spur near their orchard; that on or about the 14th, 15th, and 16th days of June, 1910, the appellees demanded of the appellant the cars agreed upon and that they be placed on this spur track; that appellant failed and refused to deliver the refrigerator cars in response to the request, and by reason of that failure the appellees sustained damages in losing an opportunity to ship their fruit. The cause of action appears to be based upon the failure of the appellant to deliver refrigerator cars according to the terms of a special contract, and for the failure to deliver cars as required by statute, after notice. The case was submitted to the jury upon special issues, and upon th'e answers of the jury the appellant moved for judgment in its favor. This motion was overruled and judgment entered in favor of the appellees for the sum of $1,350.

The first assigned error complains of the action of the court in rendering judgment against the defendant, for various reasons stated, among which is the insufficiency of the evidence to establish a binding contract to furnish cars at a particular time and place. The evidence shows that th'e contract, if any, was made with Mrs. L. E. Clark; and the jury found, in response to the questions submitted, that Mrs. Clark was at the tíme the agent of the Texas State Railroad and also the agent of the appellant for the purpose of securing shipments of peaches. The jury further found that the appellant, through its agent Mrs. L. E. Clark, agreed with the appellees that if they (appellees) would use Pacific Fruit Express cars and route their shipments in part over the appellant’s line of railroad the appellant would furnish Pacific Fruit Express cars and have them put on the “ore bed” road in their orchard, and would prepare to handle their shipments of peaches for the season of 1910. There was no complaint of this finding of the jury. This, we think, is tantamount to a finding that there was an agreement between the appellant’s agent and the appellees to -furnish the cars referred to above. That these cars were not furnished after notice and demand is undisputed. It is also undisputed that by reason of the failure to furnish the cars the appellees sustained damages in the loss of a considerable portion of their peach crop. This amount the jury fixed at $1,350. The appellant is in no attitude to insist upon this assignment in the present condition of the record. There was no motion to set aside the findings of the jury upon these issues, and, in the absence of such a motion, an objection based upon tbe insufficiency of tbe evidence to support tbe jury’s findings will not be considered. Smith v. Hessey, 134 S. W. 256. In tbe case cited, the subject was fully discussed by Justice Jenkins of tbe Austin Court of Civil Appeals, and a writ of error denied by the Supreme Court. It is true tbe jury did not find that there was a contract to place tbe cars upon tbe spur track at any particular time, or upon any given notice. But there was evidence from which tbe court might have concluded that the appellant bad so contracted. Tbe judgment rendered involves that finding, which finding must be treated with as much deference as if it bad been made by tbe jury.

In its second and third assignments of error tbe appellant complains that tbe court erred in rendering judgment for tbe sum of 81,350, because, it is contended, tbe facts as found by the jury show that tbe only damage tbe appellees sustained was the sum of $9 per car, that being tbe amount they would have been required to pay for the hauling of their peaches from their orchard to tbe station of tbe defendant company at Rusk. The evidence was not such as requires tbe court to find as a matter of law that tbe appellees should have pursued that course. Tbe appellant had alleged in its answer that at the time tbe cars were demanded it did not have sufficient cars to accommodate the public and take care of all tbe fruit brought to its station at Rusk, and that it bad caused people not to bring peaches to that station for shipment on account of the insufficiency of cars. It is further alleged that, if the appellees had gathered their fruit and delivered it to the agent of the appellant at Rusk on the dates specified, it would not have been accepted for transportation. It devolved upon the appellant to allege and prove that the appellees would have secured transportation for their fruit had they carried it to the depot at Rusk. The jury merely found that the cost of hauling the peaches from the orchard to the depot was $9 per ear. The court evidently concluded that under the evidence this was not required as a matter of prudence in avoiding or lessening the damages resulting from the failure to have cars at the place agreed upon.

It is further contended that there was a variance between the testimony and the allegations in the appellees’ petition as to the date of the breach of the contract. They had alleged that the dereliction complained of occurred on or about the 13th and 14th of June, 1910, when the testimony shows that it occurred on the corresponding dates in July, 1910. This testimony when offered was objected to upon the ground of variance from the allegations. The language “on or about,” taken in connection with the further aver-ments of the petition, we think was sufficient to admit the evidence. It was not proper for the court to hold the appellees to strict proof of facts occurring on very dates stated in their petition. The expression “on or about” was sufficient to justify the latitude allowed as to the dates.

There is also complaint of the insufficiency of the evidence to support a finding that the appellees had been damaged in the sum for which judgment was rendered. The jury found that those damages would amount to 81,350. There was no motion to set aside that finding; and, under the rules announced in discussing the first assigned error, this will be overruled.

It is further contended that the court erred in rendering judgment against the appellant because the evidence showed, and the jury found, that at that season of the year there was an unprecedented demand for refrigerator cars, and that this unusual demand was the reason why the cars were not furnished. As before stated, the appellees did not sue for a negligent failure to furnish cars, but for the breach of a special contract. That a carrier may, through its agent, contract to furnish ears within a less period of time than that required by statute, and that the carrier may be held responsible for the consequences of a failure to comply with these special contracts, regardless of its inability due to an unusual demand for cars, has been definitely settled by the decisions of our courts. Texas & Pacific Ry. Co. v. Shawnee Cotton Oil Co., 55 Tex. Civ. App. 183, 118 S. W. 776, and cases there cited.

The judgment of the district court will therefore be affirmed.
      <©s»For other cases see same topic and KEY-NUMBER in all Key-Nunpbered Digests and Indexes


author: HARPER, J.

text:
    CRISS v. STATE.
    (No. 4025.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    Appeal from Johnson County Court; B. Jay Jackson, Judge. Will Criss was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory. No statement of facts accompanies the record, nor does the record contain any bills of exception. Under such circumstances, the motion for a new trial contains no ground we can review. The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    CRISS v. STATE.
    (No. 4026.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    Appeal from Johnson County Court; B. Jay Jackson, Judge. Will Criss was convicted of vagrancy, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Prom a conviction for vagrancy, this appeal is prosecuted, without a statement of facts or bills of exceptions. There is nothing raised which can be reviewed. The judgment is affirmed.


text:
    McELREE v. STATE.
    (No. 4006.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    Appeal from Nacogdoches County Court; J. P. Perritte, Judge. Will McElree was convicted of making an illegal sale of intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a misdemeanor conviction for making an illegal sale of intoxicating liquor in prohibition territory. There is no bill of exceptions, nor statement of facts, and nothing raised which can be reviewed in the absence of these. The judgment is affirmed.


author: PLEASANTS, C. J.

text:
    WAPLES et al. v. MARRAST.
    (No. 7267.)
    (Court of Civil Appeals of Texas. Galveston.
    May 18, 1916.)
    Appeal from District Court, Galveston County; Robt. G. Street, Judge. Petition for mandamus by E. K. Marrast against Paul Waples and others, composing the Democratic State Executive Committee. The writ was awarded, and respondents appeal.
    On the answers of the Supreme Court to certified questions (184 S. W. 180), reversed, and judgment rendered for defendants.
    Cecil H. Smith, of Sherman, Walter Collins, of Hillsboro, and James B. Stubbs, of Galveston, for appellants.
    John W. Campbell, Chas. H. Theobald, Walter E. Cranford, and Marion J. Levy, all of Galveston, for appellee.
   PLEASANTS, C. J.

The controlling questions in this case were certified by us to the Supreme Court. The answers of the Supreme Court to the questions certified, as shown by the opinion of that court rendered on March 23, 1916, requires that the judgment of the court below be reversed, and judgment here rendered for appellant; and it has been so ordered. Reversed and rendered.


text:
    FOSTER v. STATE.
    (No. 4012.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    Rehearing Denied April 26, 1916.)
    1. Criminal Law <s=o1117 — Appeal—Review —■Change oe Venue — Bill oe Exceptions.
    By express provision of Vernon’s Ann. Code Cr. Proc. 1916, art. 634, refusal of change of venue cannot be reviewed, unless the facts on which it is based are presented by bill of exceptions, filed at the same term.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2925; Dec. Dig. <&wkey;1117.]
    2. Criminal Law <⅜^1098 — Appeal—Statement op Pacts.
    The stenographer’s complete report of the trial, from which Vernon’s Ann. Code Cr. Proc. 1916, art. 844c, requires appellant to prepare a statement of facts, though approved by the trial judge as the statement of facts, will not be considered as such by the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. &wkey;
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    John Foster was convicted, and appeals.
    Affirmed.
    Martin & Nelson and F. J. McCord, all of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully pursuing and following the business and occupation of selling intoxicating liquors in the prohibition county of Gregg.

The term of court at which appellant was tried adjourned December 18, 1915. He filed a motion for a change of venue, which was contested by the state. The court, after hearing evidence on it, overruled his motion. The statute (Vernon’s C. C. P.) art. 634) is:

“The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.”

No such bill was filed during term time. No statement of facts of what was testified on the subject was filed during term time. Hence we are prohibited from reviewing the question under the very terms of the statute and a great many uniform decisions of this court so holding, cited under said article of the Procedure.

As stated, the term of court at which appellant was tried adjourned December 18, 1915. There is with the record the official court stenographer’s report of the trial. It contains, as such reports usually do, the purported testimony of the witnesses in question and answer form; also the objections of the attorneys on each side to various items of testimony, more or less of the argument of the attorneys on their objections, what the court said, and his rulings. Such matters have no place in a statement of facts. The certificate of the stenographer is to the effect that the 34 pages of typewriting contain a full and complete “report of the trial,” not a statement of facts, as made up from his shorthand notes, to the best of his skill and ability, and is signed by him officially. On a separate sheet, which is pasted onto the last sheet of the stenographer’s report, is a certificate, signed by the presiding judge, that, the parties having failed to agree to a statement of facts, and the defendant having furnished him “this report of the trial as his statement of facts,” he approves it as such, and orders it filed. The statement of facts proper could have been readily embraced on about 10 typewritten pages in narrative form.

Evidently the stenographer made out the report he did strictly in accordance with the law. Article 844b, Vernon’s O. O. P. From this stenographer’s report, it was the duty of the appellant to prepare a statement of facts. Article 844e. This he did not do. He had, under the law, even after the stenographer’s report was filed, about 2½ months to prepare a statement of facts therefrom; but, instead of doing that, he presents to the judge this stenographer’s report, and asks the court to approve, that. It has been the uniform holding of this court, in a great many cases, and down to the present day, that such a paper will not be considered by this court as a statement of facts, and will be stricken out when moved to do so by the state. The state’s motion, therefore, to strike out this report as a statement of facts is granted. We cite merely some of the cases, not all of them by any means. Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 624; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Baird v. State, 51 Tex. Cr. R. 322, 101 S. W. 991; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135; Kemper v. State, 57 Tex. Cr. R. 355, 123 S. W. 131.

In the absence of a statement of facts, no other question is raised which we can review. The judgment is therefore affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WRIGHT v. STATE.
    (No. 4040.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    Criminal Law <⅜=1114 (3) — Appeal — Review.
    Where no statement of facts accompanies the record on appeal, the only ground presented in the motion fox a new trial which is reviewable is that going to the sufficiency of the indictment.
    [Ed. Note — For other eases, see Criminal Law, Cent. Dig. § 2921; Dec. Dig. <§=51114(3).]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Clabe Wright was convicted of robbery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery and his punishment assessed at five years’ confinement in the state penitentiary.

No statement of facts accompanies the record. Consequently the only ground presented in the motion for a new trial we can consider is the one attacking the sufficiency of the indictment. The indictment charges robbery under our statute, and the court did not err in overruling the motion to quash it.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    BURKS v. STATE.
    (No. 4019.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Obiminal Law <&wkey;1094,1101 — Appeal and Error — Statement op Facts and Bills op Exception — Necessity.
    On appeal from a conviction, where the statement of facts does not accompany the record, and no bills of exception were reserved, the judgment will be affirmed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. <§=» 1094, 1101.]
    2. Criminal Law &wkey;>1122(4) — Record on Appeal — Review op Instructions — Evidence Not Shown.
    The court cannot review the refusal of instructions in the absence of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2942; Dec. Dig. <&wkey;>1122(4).]
    Appeal from Criminal District Court, Dallas County; W. L. Crawfoi’d, Jr., Judge.
    Howard Burks was convicted of aggravated assault, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault, his punishment being assessed at a fine of $25.

The statement of facts does not accompany this record, nor were bills of exception reserved. There are refused instructions; but, in the absence of the testimony, we are unable to say there was any error shown in refusing these instructions.

In the condition of this transcript, the judgment will be ordered affirmed.


author: HARPER', J.

text:
    BARNES v. STATE.
    (No. 3997.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.
    Rehearing Denied April 12, 1916.)
    1. Criminal Law <&wkey;167 — Former Jeopardy —Basis op Claim.
    Former conviction, in a court without jurisdiction, could not form the basis for a plea of former jeopardy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 304-308, 310, 311; Dec. Dig. <&wkey;>167.]
    2. Criminal Law <&wkey;202(3) — Former Jeopardy-Separate Oepenses — Violations op Liquor Laws.
    The offense of violating the local option law by making sales of liquors, and the offense of pursuing the business of selling intoxicating liquors hi prohibition territory, are separate and distinct, as defined by Pen. Code 1911, arts. 589, 597.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. <§=5202(3).]
    3. Criminal Law <&wkey;161 — Former Jeopardy —Defense.
    Under the Constitution and laws of the state, a person cannot be twice tried and convicted for the same overt act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dec. Dig. <&wkey; 161.]
    4. Criminal Law <&wkey;>589(l) — Postponement op Triai>-Fokmer Jeopardy.
    Where a prosecution is based on an act upon which defendant has already been convicted of an offense, motion to postpone trial until the conviction is finally disposed of on appeal should be granted.
    [Ed. Note. — For other caséis, see Criminal Law, Cent. Dig. § 1315; Dec. Dig. <§=5589(1).]
    5. Criminal Law <&wkey;195(l) — Former Jeopardy.
    The plea of autrefois acquit is available if the transaction is the same, and the two indictments must be sustained by the same proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent.' Dig. § 382; Dec. Dig. <§=5195(1).]
    6. Criminal Law <&wkey;369(6) — Violation op Local Option Law — Evidence—Repeated Sales op Liquor.
    In a prosecution for violating the local option law by making a sale of liquor, the state cannot show that, in addition to making a sale to one witness, defendant also sold a number of times to others.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. <§=5 369(6).]

      7. Intoxicating Liquors <&wkey;236(8) — Offenses — Pursuing Business — Proof.
    In a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, proof that defendant made only a single sale to a -witness and sold to no other person or persons, will not support conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 310; Dec. Dig. &wkey;> 236(8).]
    8. Criminal Law &wkey;>202(3) — Former Jeopardy — Identity of Offenses — Statutes.
    Defendant, convicted in the county court for violating the local option law by making a sale of liquor, an offense denounced by Pen. Code 1911, art. 597, can be subsequently convicted of engaging in the business of selling intoxicating liquor in prohibition territory, an offense denounced by article 589, the offenses being distinct, the one consisting in making an illegal sale of liquor, the other of engaging in the business of selling, though the second prosecution involves introduction of evidence of the sale for which he has been convicted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. <&wkey;>202(3).j
    Appeal from District Court, Young County; F. O. McKinsey, Judge.
    Cleve Barnes was convicted for pursuing the business of selling intoxicating liquors in prohibition territory, and. he appeals.
    Affirmed.
    Brooks & Worsham, of Dallas, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER', J.

Appellant was convicted of pursuing the business of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

This is the third appeal in this case, the opinions on the former appeals being reported in 74 Tex. Cr. R. 501, 168 S. W. 858, and 174 S. W. 1051.

While there are four hills of exception in the record, they all relate to one question, and present but one proposition of law. The indictment in this ease charges appellant with pursuing the occupation of selling intoxicating liquors, in proper language and then alleges that, while pursuing such business—

“the said Cleve Barnes did then and there, on or about the said date, to wit, the 30th day of December, 1913, make one sale of intoxicating liquor to one Gran Glenn, and that on or about the 19th day of December, A. D. 1913, the said Cleve Barnes, in said county and state aforesaid, did then and there make a sale of intoxicating liquor to the said Gran Glenn, and did thereafter make another sale of intoxicating liquor to the said Gran Glenn in said county and state, on or about the 29th day of December, 1913; that, as aforesaid, the said Cleve Barnes made three distinct sales of intoxicating liquor to said Gran Glenn, in said county and state; that the said Cleve Barnes did then and there, in Young county, Tex., on or about the 30th day of December, 1913, make one sale of intoxicating liquor to one Seth Mabry, and did, on or about the 31st day of December, 1913, in said county and state, make another sale of intoxicating liquor to the said Seth Mabry, and that on various other dates during the months of December, November, and October of the year 1913, the said Cleve Barnes did then and there make various and divers ■ other sales of intoxicating liquor to the said Seth Mabry, and that the said Cleve Barnes did then and there, in the county and state aforesaid, and on or about the aforesaid mentioned dates, make as many as 15 sales of intoxicating liquor to the said Seth Mabry; that the said Cleve Barnes, did then and there, in said county and state, on or about the 25th day of December, 1913, make a sale of intoxicating liquor to one O. W. McBrayer, and that thereafter, on or about the 1st day of January, 1914, the said Cleve Barnes, in said county and state aforesaid, did then and there make another sale of intoxicating liquor to the said O. W. McBrayer; that the said Cleve Barnes did then and there, on or about the 23d day of December, 1913, in the county and state aforesaid, make one sale of intoxicating liquor to one Frank Gallaher; that the said Cleve Barnes, in said county and state aforesaid, on or about the 15th day of October, 1913, did then and there make one sale of intoxicating liquor to N. A. Copeland; that the said Cleve Barnes, in said county and state aforesaid, did then and there, during the month of November, A. D. 1913, make various and divers sales of intoxicating liquor to the said N. A. Copeland, and did then and there, on the various mentioned dates aforesaid, in said county and state, make as many as 10 distinct sales of intoxicating liquor to the said N. A. Copeland ; that on or about the 14th day of February, 1914, in the county and state aforesaid, the said Cleve Bames did then and there make one sale of intoxicating liquor to E. P. Stovall; that on or about the 14th day of February, A. D. 1914, in the county of Young and state of Texas, the said Cleve Barnes did then and there make two sales of intoxicating liquor to one Harvey Taylor; that the said Cleve Barnes, in the county of Young and state of Texas, and during the month of January and February, A. D. 1914, and during the months of October, November, and December, A. D. 1913, and anterior to the presentment of this indictment, and within three years next prior to the filing of this indictment, make many and divers sales of intoxicating liquor to divers persons, whose names to the grand jury are unknown,” etc.

At the same term of court the grand jury also returned indictments against appellant for making single sales to Gran Glenn and to Seth Mabry, and the county attorney later filed an information and complaint, charging that appellant had made a single sale to Harvey Taylor. By the .plea on file, and the bills, it is shown that appellant had been tried in the county on those indictments and information, and convicted of making single sales of intoxicating liquor to Gran Glenn, Seth Mabry, and Harvey Taylor, from which judgments of conviction appellant prosecuted an appeal to this court Later, when this case was called for trial in the district court, appellant entered a plea, asking a continuance of this case until those cases were heard and passed on by this court, contending that if those judgments were affirmed, it would be a bar to introducing evidence of sales to said Gran Glenn, Seth Mabry, and Harvey Taylor, upon which those prosecutions were based in support of the prosecution of appellant for pursuing the occupation. This plea was overruled, and evidence of all sales made to Gran Glenn, Setli Mabry, and Harvey Taylor was admitted in evidence on tbis prosecution, as well as proof of sales to E. P. Stovall, Frank Gallaher, and Henry Wilson. As hereinbe-fore stated, he was convicted in this cause, and on the day of submission of this cause there was also submitted the three cases in which he had been convicted in the county court. So we have all the records before us.

Tike cases in which appellant was charged and convicted of making single sales to Gran Glenn and Seth Mabry will be this day reversed and remanded, for reasons stated in those opinions, but the case from the county court in which he was charged with making a single sale to Harvey Taylor will be affirmed, as shown by the opinion in that case this day handed down. As to the cases of single sales to Gran Glenn and Seth Mab-ry, they, of necessity, pass out of this case, as they are reversed on the ground that on the face of the indictments the county court had no jurisdiction, and the judgments are void. In the cases of Ogle v. State, 43 Tex. Cr. R. 219, 63 S. W. 1009, 96 Am. St. Rep. 860, McLain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365, Leach v. State, 36 Tex. Cr. R. 248, 36 S. W. 471, McNeil v. State, 29 Tex. App. 48, 14 S. W. 393, and Gibson v. State, 47 Tex. Cr. R. 489, 83 S. W. 1119, it was held, if former conviction was in a court without jurisdiction, it cannot form the basis for a legal plea of former jeopardy, and as the plea filed copies those indictments, and they show that under the allegations there was no jurisdiction in the county court. Head v. State, 64 Tex. Cr. R. 112, 141 S. W. 536. In the cases of Alexander v. State, 53 Tex. Cr. R. 504, 111 S. W. 145, and 53 Tex. Cr. R. 555, 110 S. W. 918, and Piper v. State, 53 Tex. Cr. R. 485, 110 S. W. 898, and 53 Tex. Cr. R. 550, 110 S. W. 899, it was held that, even in a case where the plea of former jeopardy was improperly overruled, and both cases were before this court on appeal, the court would consider both records, and affirm one and reverse the other.

So the sole question left in this case is, Does the fact that appellant was convicted in the county court for violating the local option law in making a sale to Harvey Taylor render the testimony of Harvey Taylor inadmissible when appellant was being tried, not for violating the local option law by making sales of liquor, but for pursuing the business of selling intoxicating liquor in prohibition territory? They are separate and distinct offenses as defined by our Code, articles 589, 597, P. O.; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Oliver v. State, 152 S. W. 1066; Byrd v. State, 151 S. W. 1068. In the case of Thomas v. State, 147 S. W. 262, this court held, speaking through Judge Davidson:

“The distinction has been drawn in the decisions by this court, as is recognized by the statute, that there is a wide distinction between the sale of intoxicating liquors in prohibited territory and the following of the occupation or pursuing the business of selling such liquors. In the Fitch Case [58 Tex. Cr. R. 366, 127 S. W. 1040], it is said, ‘It is not debatable that the business is not the same.’ ”

Wte agree with appellant, as contended in his brief, under the Constitution and laws of this state a man:

(1) “Cannot he twice tried and convicted of the same overt act”; (2) “if the prosecution is based on the same act upon which the defendant has been convicted, motion to postpone until that case is finally disposed of on appeal should be granted;” and (3) “autrefois acquit is available if transaction is the same and the two indictments must be sustained by the same proof.”

Agreeing with appellant on these propositions of law, we see no necessity to cite the authorities he quotes, nor to discuss them; it is their applicability to the facts in this case we do not agree to.

Suppose when appellant was being tried in the county court the state had offered to prove that, in addition to making a sale to Harvey Taylor, he had also bought from Gran Glenn whisky on three separate and distinct occasions, as testified to by Glenn on this trial, and had offered to prove by E. P. Stovall that he had bought whisky from appellant, by Frank Gallaher that he bought whisky from him; by Henry Wilson that he had bought whisky from him, and by Seth Mabry that on 12 or 15 different occasions he bought “some stuff from appellant, drawn out a cider barrel that smelled and tasted like it had whisky in it, paying him 20 cents drink for it,” the testimony would not have been admissible; and, if the court had admitted it, it would have resulted in a reversal of the case. Baughman v. State, 49 Tex. Cr. R. 33, 90 S. W. 166; Monroe v. State, 56 Tex. Cr. R. 445, 120 S. W. 479; Belt v. State, 47 Tex. Cr. R. 83, 78 S. W. 933; Walker v. State, 44 Tex. Cr. R. 546, 72 S. W. 861; Curtis v. State, 52 Tex. Cr. R. 606, 108 S. W. 380.

On the trial of this case, if the state had called Harvey Taylor and proved only a single sale to him, and a sale to no other person or persons, and no other circumstance, the conviction could not stand. Floyd v. State, 147 S. W. 264; Thompson v. State, 57 Tex. Cr. R. 408, 123 S. W, 593; Thomas v. State, 147 S. W. 262; Molthrop v. State, 147 S. W. 1159; Whitehead v. State, 147 S. W. 583.

This makes it manifest that the two indictments could not be, and would not be, sustained by the same proof. In one instance it takes only one transaction; in the other there must be two or more transactions, and other facts and circumstances showing an engaging in a business or occupation, for it is for engaging in the occupation that he is on trial. So the authorities cited under appellant’s third- proposition have no application to a case of this character. The court instructed the jury in this case:

“If you believe from the evidence that the defendant made the separate and distinct sales of intoxicating liquor as testified to by the witnesses, nevertheless you cannot convict him unless you further believe that he engaged in or pursued the business or occupation of selling intoxicating liquors, as those terms have been heretofore defined; and, if you have a reasonable doubt as to this, you will acquit the defendant.”

He then defines “occupation” or “business.”

“By the terms ‘occupation’ and ‘business’ as used in this charge and in the indictment herein is meant a vocation, calling, trade, or business in which ono engages to procure a living, or to obtain wealth. It need not be a person’s only occupation or business, nor his principal business; but it is sufficient if it be shown that it was one of the pursuits by which a person endeavors to make money or procure a living.”

In the county court appellant was convicted of one overt act making a sale. He could not be convicted on such proof in this ease, and; his first proposition has no application, and, the first and third not applying to a state of facts like this, of course the second would have no application. Article 589, under which this xu'osecution was had; reads:

“If any person shall engage in or pursue the occupation or business of selling intoxicating liquors,” in any territory “in which the sale of intoxicating liquors has been or shall hereafter be prohibited, * * * he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.”

This is all of the article of the statute defining the offense of pursuing the business, and is the offense for which the punishment is prescribed — he is punished for pursuing a given occupation or business. As said by this court in Standford v. State, 16 Tex.App. 331, in discussing the occupation tax laws:

“It is not the sale of liquor that constitutes the offense. It is the engaging in the business of selling. * * * It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it even to the extent of one sale.” >

See, also, Williams v. State, 23 Tex.App. 499, 5 S. W. 136; McReynolds v. State, 26 Tex.App. 374, 9 S. W. 617; Love v. State, 31 Tex. Cr. R. 470, 20 S. W. 978.

A question may be then asked, Why is it that at least two sales must be proven, in addition to proving one had engaged in the business, before a conviction would be authorized under this provision of the Code? The Legislature, knowing the above rule of law, provided in article 591:

“It shall be necessary for the state to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquors within three years”

—adding to the quantum of proof theretofore required to prove that one was engaged in a given occupation. But the sale is not the offense denounced nor punished in article 589. A person might, in three years, make a number of isolated sales, and he would not be guilty of violating this provision of the Code. Eor such acts, if prosecuted at all, prosecutions would only lie under article 597, and under this article no person can be prosecuted or convicted for pursuing the occupation.

Appellant is not punished under this indictment for making any sale, but for pursuing a given occupation or business, and he could not be punished for making a sale or sales, unless he was pursuing the business. Under the indictment in the county court he could not be punished for pursuing the occupation or business, but could only be punished for making a single sale. This question was so thoroughly discussed in Robinson v. State, 66 Tex. Cr. R. 392, 147 S. W. 245, citing the authorities, we do not deem it necessary to further discuss it.

The judgment is affirmed.

DAVIDSON, J„ absent.
      <j&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>:For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    BARNES v. STATE.
    (No. 4015.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.
    Rehearing Denied April 12, 1916.)
    Cbiminal Law (&wkey;>595(4) — Continuance—I-h-matebial Testimony.
    Continuance is properly refused for absence of a witness whose testimony would be altogether immaterial and not applicable to the case.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323; Dee. Dig. &wkey; 595(4).]
    Appeal from Young County Court; W. P. Stinson, Judge.
    Cleve Barnes was convicted of making a sale of whisky in a prohibition county, and he appeals.
    Judgment affirmed.
    Brooks & Worsham, of Dallas, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a misdemeanor conviction in the county court for making a single sale of whisky in prohibition county. The complaint and information both allege that in June, 1902, an election was held in Young county, and the law prohibiting the sale of intoxicating liquors therein then duly put in force, and that on or about October 1, 1914, while said law was in force, appellant unlawfully made a sale of such liquor to Harvey Taylor. These pleadings were filed in the county court May 20, 1915. The case was tried July 13, 1915, and the state proved, without any contradiction, that said law was in force, and the one sale made, as alleged. Appellant moved for a continuance on account of the absence of his wife, but his bill as qualified by the court clearly shows that her claimed testimony would have been altogether immaterial, and not applicable in the case.

He has another bill to the court’s overruling his other motion to continue, because of the pending indictment against him in No. 3997, 185 S. W. 2, this day affirmed by us, claiming that indictment was a carving, and. placed him in jeopardy, and that he was entitled to a continuance to await trial on said felony charge. The trial in said felony charge, and his conviction therein, occurred after his trial and conviction herein. There was no merit in this motion, and the court correctly overruled it. The question is discussed and correctly decided by us in said cause No. 3997, this day decided.

The judgment is affirmed.

DAVIDSON, J., absent.
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MONTOYA v. STATE.
    (No. 4023.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Rape @=>59(4) — Statutory Provisions— “Eraud.” „„ . .
    „„ . . Under Pen. Code 1911, art. 1066, providing that as applicable to rape fraud must consist in administering, without her knowledge or consent, some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance and committing the offense while she is under the influence of such substance, an instruction which ignored that part of the statute requiring the substance to be administered without knowledge or consent was erroneous.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 91; Dec. Dig. @=>59(4).
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Eraud.]
    2. Rape @=>11 — Statutory Provisions — Threats.
    Under Pen. Code 1911, art. 1065, providing that threats as applicable to rape shall be such as might reasonably create a just fear of death or great bodily harm, a statement by the defendant to the prosecutrix that if she did not submit he would not take her back, but ■leave her in the road some four or five miles from their destination, is not such a threat that would'give just fear of death or great bodily harm.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 10; Dee. Dig. @=>11.]
    3. Rape @=538(2) — Evidence—Eorce—Use op Liquor.
    In a prosecution for rape, under Pen. Code 1911, art. 1064, defining force as applied to rape as that which might reasonably be supposed sufficient to overcome resistance, considering the relative strength of the parties and other circumstances, evidence that plaintiff was given beer and that the defendant threatened to leave her in the road if she did not submit was admissible on the issue of force.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 49; Dec. Dig. @=>38(2).]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Domingo Montoya was convicted of rape, and he appeals.
    Reversed and remanded.
    Elfers & Pelphre'y and W. D. 1-Iowe, all of -El Paso, for appellant. P. H. Marcum, of El Paso, and C. C. McDonald, Asst. Atiy. Gen., ■for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at 5 years’ confinement in the penitentiary.

The indictment contains two counts, one charging rape on a girl under 15 years of age, and the other charging rape by force, threats, and fraud. The first count was withdrawn from the consideration of the jury; the evidence showing the girl to be more than 15 years of age. The court submitted only the second count in the indictment — 1‘ape by force, threats, and fraud. The court in his charge defined force, threats, and fraud; the paragraph on fraud reading as follows:

“ ‘Eraud,’ as that term is used in this charge, must consist in the use of some substance producing an unnatural sexual desire, or such stupor as prevents or weakens resistance and committing the offense under the influence of such substance. It is a presumption of law which cannot be rebutted by testimony that no consent was given under the circumstances mentioned in this article.”

As applicable to rape, “fraud” is defined by . article 1066 of the Penal Code, and reads;

“The ‘fraud’ must consist * * ⅜ in administering, without her knowledge or consent, some substance producing unnatural sexual desire or such stupor as prevents,” etc.

It will be noticed the definition as given by the court ignores and omits that part of the statute which, to constitute fraud in a rape case, requires the substance be administered “without the .knowledge or consent” of the woman or girl. That is made an essential element, and should not have been omitted from the definition of the term, and this but demonstrates there is no element of rape by fraud made by the evidence in this case. The only thing given or administered to the girl was beer. She in company with appellant and two others, went to the “White House,” a roadside inn or saloon near El Paso, and while there all four of the parties drank beer. The beer the prosecutrix drank was knowingly drunk by her, and it was not administered to her by force or without her consent. She voluntarily drank it when tendered to her. She says she only drank a half glass, while perhaps there is other testimony indicating that she drank two glasses of beer. Whatever the amount was she drank, it was of her own accord, and there is no evidence that there was administered to her any substance without her knowledge or consent, and the court erred in defining and submitting rape by this mode and means.

Again he defined threats, which as applicable to rape is defined to be such as “might reasonably create a just fear of death or great bodily harm.” The only evidence of threats in the record is that appellant told her and her girl companion, 'Petra Morales, that if they did not submit to him and his companion, only called “Nieto” in the record, they would not take them back to El Paso in the automobile, but leave them there on the road. This occurred about half way between the “White House” and El Paso — some four or five miles from El Paso. This threat is admissible as tending to show the force used on that occasion, but it is not such a threat as would give “just fear of death or great bodily harm.” The evidence would not support a verdict of rape accomplished by threats, as definid by our Code (article 1065), and the court erred in defining threats and submitting rape by threats to the jury.

The contention that the evidence wholly fails to make a case of rape by either of the means named in the statute cannot be sustained. There is evidence of force being used, and on this issue it would be proper to admit the evidence that the prosecutrix was given beer at the “White House Inn” or saloon, and that appellant threatened to leave her in the road if she did not submit. Beer, if taken in sufficient quantity by one unaccustomed to drinking it, might and probably would have some effect on the resistance offered, and should be considered in connection with the other testimony on the issue of force, as defined by the Code (article 1064). The threat to leave the girls in the road five miles from El Paso is an element of force. But while the evidence is admissible on the question of force, yet it does not raise the issue that the offense, if committed, was committed by either threats or fraud as defined by our Code. On another trial, if the evidence is the same, the evidence will be admitted on the issue of force, but the court will submit only that issue to the jury, and will not submit rape by either threats or fraud.

While there are a number of other bills of exception in the record, we do not deem it necessary to discuss them. Those complaining that the jury discussed appellant’s failure to testify, of the remarks of the court, and of counsel for the prosecution, will not likely occur on another trial. None of the others present error.

The judgment is reversed, and the cause is remanded.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes