author: HARDER, J.

text:
    ROBERTSON v. STATE.
    (No. 3626.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Rehearing Denied Oct. 9, 1915.)
    1. Intoxicating Liquors <§=>239—Prohibi-tion Territory—Pursuing Business—Instructions.
    The case being one, partly at least, depending on circumstantial evidence, refusal to defendant, on a trial for pursuing the business of selling intoxicating liquors in prohibition territory, of an instruction to acquit unless the jury found that he kept in his possession intoxicating liquors for sale, was not error.
    [Ed. Note.—Eor other eases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. <§=> 239.]
    2. Criminar Daw @=507—'“Accomplice” — Seller and Buyer of liquor.
    A purchaser of liquor is not an accomplice of the seller in his illegal sale, though soliciting the sale to be made to him.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <§=> 507.]
    3. Intoxicating Liquors <§=>236—Prohibi-tion Territory—Pursuing Business—Evidence.
    Evidence, on a prosecution for pursuing the business of selling intoxicating liquors in prohibition territory, held sufficient to sustain the conviction.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <§=> 236.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Jess Robertson was convicted, and appeals.
    Affirmed.
    Cunningham & Oliver and D. G. Hill, all of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARDER, J.

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

The court did not err in refusing to quash the indictment. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1074, Ann. Cas. 1913B, 112.

Appellant requested the court to instruct the jury peremptorily to acquit appellant. We do not think the court erred in refusing to give such instruction, and will discuss this question more thoroughly under the assignment alleging the insufficiency of the evidence to sustain the verdict.

He also requested the court to instruct the jury that unless they found that appellant kept, in his possession intoxicating liquors for sale they would acquit appellant. We do not think the court erred in refusing this instruction, because the case is one, partly at least, depending upon circumstantial evidence, and the court so instructed the jury.

The indictment alleged a sale of liquor was made by appellant to T. G. Thomason, and Thomason testified to facts and circumstances authorizing a finding that a sale was made to him. The provision of our Criminal Code relating to accomplice testimony does not apply to him, for our Code so provides. It has often been held that a purchaser of liquor is not an accomplice of a seller, even though he solicits the sale to be made to him. Walker v. State, 72 S. W. 401; Marmer v. State, 47 Tex. Cr. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 155, 109 S. W. 370; Trinkle v. State, 59 Tex. Cr. R. 257, 127 S. W. 1060. The elements of a sale were properly defined in the court’s charge, and the objections to that paragraph of the charge present no error.

The only other assignment of error is that the evidence is insufficient to show that sales were made to the persons named in the indictment, and, if that be not correct, then the evidence is insufficient to show that appellant was engaged in the business or occupation alleged. The express books show that in December appellant received in one shipment two gallons of whisky, and in another three gallons of whisky; that at another time he received a shipment of beer.

L. E. Keys testified he was at the Loven home, where appellant roomed, and saw appellant and others mixing whisky or alcohol. He said they mixed four or five quarts of alcohol. They would take a quart bottle and fill it about two-thirds full of water and finish filling the bottle with alcohol.

A. H. Darnell testified he was standing near the Loven house (where appellant roomed), and he saw a man come out with a quart of whisky, and he motioned towards the house, and he went there to get him some whisky. He went into a room that was darkened; a man was in there, but he could not say whether or not it was appellant. He laid down a dollar and picked up a quart of whisky. He testifies to going there on two other occasions, one time paying a dollar for it, and the other time he says he saw a slip of paper, and it said $1.25. He laid down $1.25 and picked up a pint of whisky. Other facts and circumstances are in the case, and it shows that some one was engaged in the business of selling intoxicating liquor at this house, and we think the facts and circumstances were sufficient to show that it was appellant. He admits getting this whis-ky by express, and carrying it to his hotel; but he says only a small portion of it belonged to him and the remainder belonged to one Evans, that the part he got was for his own use, but he would have the jury believe that those who got whisky there purchased it from Evans, but the evidence would authorize the jury to find that appellant was the person engaged in the business.

As to the sale to Thomason, he says he and some friends made up a purse of $2, and he went to this Loven house and saw appellant in the hall and told him he desired to purchase a quart of whisky; that appellant told him he did not have a quart, but had a pint, and, when asked the price, told Thomason it would be $1.25 a pint. Thomason demurred at the price, hut appellant insisted on the price, and he walked into a door of the room near where appellant was standing, put $1.25 on the table, and picked up a pint of whisky. This would authorize a finding that a sale was made by appellant to Thomason.

The other sale was alleged to have been made to M. B. McDaniel, and McDaniel testified: He saw appellant talking to two or three boys, and he walked up and made the remark he wished he had a pint of whisky, when appellant said to him, “You might find as much as a pint in a barrel at the back of Hale’s store, near the door.” That in about 15 minutes he went to this place and got a pint of whisky out of the barrel and left a dollar. This, we think, would authorize a finding that a sale was made to McDaniel, by appellant.

It is true appellant takes the stand and undertakes to explain all these circumstances in a way consistent with his innocence, but the jury was not bound to accept his explanation as true. In passing on the sufficiency of the evidence to sustain a verdict, we must take the evidence offered in behalf of the state, and, if it is found to be true, it would support the verdict. We will not reverse the judgment unless the evidence is unreasonable.

We do not think the state’s evidence is unreasonable, and the facts and circumstances proven by the state will support the verdict, and the judgment is affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J.

license: Public Domain

text:
    THOMPSON v. STATE.
    (No. 3613.)

    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Dissenting Opinion, Oct. 9, 1915.)
    1. Criminal Daw &wkey;>423 — Evidence—Conspirators — Evidence oe Conspiracy.
    Though all the testimony for defendant is to the contrary, yet, if the testimony as a whole raises the issue that defendant and his wife were acting together in making the assault, then her acts and declarations during the time of the preparation for the act and while it was being consummated are admissible.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 989-1001; Dec. Dig. <&wkey;> 423; Assault, Cent. Dig. § 129.)
    2. Criminad Daw <&wkey;427 — Conspiracy—Reception oe Evidence — Order.
    Where a conspiracy is shown, it is immaterial that this is not done until after introduction of acts and declarations of a co-conspirator.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1012-1017; Dec. Dig. <©=> 427.)
    3. Criminal Daw <©=427 — Evidence — Conspiracy.
    A conspiracy may be shown by circumstances.
    [Ed. Note. — For other casest see Criminal Daw, Cent. Dig. §§ 1012-1017; Dec. Dig. t&wkey;> 427.)
    4. Criminal Law <&wkey;427 — Evidence—Conspiracy — Declarations oe Co-conspirator1.
    While a conspiracy cannot be shown by declarations of a co-conspirator alone, they may be considered thereon in connection with other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <&wkey;> 427.)
    5. Criminal Law <&wkey;427 — Evidence oe Conspiracy — Sueeiciency.
    Evidence, on a prosecution for assault to murder, held sufficient to authorize a finding that defendant and his wife were acting together, rendering her acts and declarations admissible on the issue of whether he fired.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <S&wkey; 427.)
    6. Witnesses &wkey;>52 — Conspiracy—Declarations oe Wife.
    Admission against defendant of the acts and declarations of his wife as a co-conspirator is not compelling her to testify against her husband, in contravention of the statute.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 124, 126-136, 165, 415, 416, 417, 419, 424; Dec. Dig. &wkey;52.)
    7. Criminal Law t&wkey;824 — Appeal—Instructions — Necessity oe Request.
    Failure to instruct that if the jury did not find defendant’s wife was acting with, aiding, and abetting him, they should not consider her acts or declarations, cannot be complained of, no such instruction having been requested, but defendant having relied solely on his objection that the testimony was inadmissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. &wkey;> 824.) ’
    8. Homicide <&wkey;178 — Evidence — Remoteness.
    The evidence sought to be elicited by defendant, charged with firing at S. from ambush, that 20 years before, shortly after the killing of C., with which S. was charged, S. was fired at from ambush by C.’s brother, was too remote in time.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 307-309; Dec. Dig. <&wkey;>178.]
    9. Criminal Law i&wkey;1055 — Appeal — Conduct oe Counsel — Request for Instructions.
    Though it was improper for the district attorney, in presenting the case, to say that the filing by defendant of a plea for suspended sentence in case of conviction was a baby act, and equivalent to an admission of guilt, and that the suspended sentence law did not apply to old men, was improper; yet, it not being such error that an instruction would not have cured it, it cannot be complained of, in the absence of exception thereto, and request for, and refusal of, an instruction to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dee. Dig. <&wkey;> 1055.)
    Davidson, J., dissenting.
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Silas Thompson was convicted, and appeals.
    Affirmed.
    Moore & Short, of Gatesville, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.

       Rehearing denied October 4. 1915.

   HARPER, J.

Appellant was convicted of assault to murder, and Ms punishment assessed at two years’ confinement in the state penitentiary.

Charley Smith is the alleged assaulted party. The evidence shows Smith’s and appellant’s farms joined; that the Branchville schoolhouse, located on a small plot of ground, was moved, when appellant and Smith both claimed the ground on which the school had stood. Words ensued and a had state of feeling engendered. It is shown that in a telephone conversation appellant said to Smith: “G — d d — n you! Stay oft that land.” Smith replied, “I expect if you will come over there this evening you will find me plowing,” when appellant respondent, “If you do, G — d d — n you, I will make it hot for you.” Appellant admits using this language, but says he intended to make it hot for Mm in law. Several days after tMs, while Smith and Searcy Glass were plowing in this plat' of ground, and Floyd Blanchard was cutting bushes, Mrs. Thompson (appellant’s wife) on her way to the Flat saw them at work and went in at the gate, and asked them what they were doing, to which Smith replied they were breaking the land. Mrs. Thompson ordered them to get off of the land, Smith replying he was not going to get off. Mrs. Thompson then left, going in the direction of her home, saying, as she did so, “You will go when I get back.” Smith testifies that, in about 10 minutes after Mrs. Thompson left, he saw appellant on the railroad dump going in the direction of Grover Beck’s. He is very positive that it was appellant he saw, saying “The man I saw was Silas Thompson”; that he had on a pair of bright yellow pants ; that, pretty soon after he saw Thompson on the railroad dump, Mrs. Thompson returned and came from towards her home. He says she again demanded that he get off the ground, and testifies:

“I do not know that I could repeat the old lady’s language, but it was just a demand to get off the land. The old lady had her right hand under her apron against her body that way, and she spoke to me in such emphatic terms, and I asked her if she had a pistol under her apron, and she said she did, and I said, T suppose you aim to use it?’ and she said she did, and I says, ‘Give me time to unhitch my team from the plow,’ and told her I did not want my team to run away and get cut up in the wire, and I told her if I was as low down as they thought I was it would not be against the law to kill me, and we talked on, and she asked me if I was willing to arbitrate it, and I told her I was, and that I was not only willing to arbitrate it, but, if she would go out of the community where it would not involve our neighbors, that I would let her choose the arbitrators, and she selected Juber Brown and Mr. Edwards and Bailey, and I told her I would abide by what they said, and I asked her would Silas abide by it, and she said she did not know, she thought he would, but he would be there in a few minutes, and said for me not to say anything that would fret him, and I told her it was a business proposition with me, and that I would not say anything to aggravate him; and I asked her where he was, and she said he was over in the field, and said that she told him to come over here, that I was over here, and said that he started, but she did not know where he went, and I said, ‘He went down to Beck’s to get his gun,’ and she did not make any reply, and about that time the first shot was fired, and I turned to look in the direction of where the shot seemed to have come from right across the dump with the lay of the land. The ground I was on was nearly level with just a little slope to the south. The mountain was south and southeast of where I was, just across the railroad dump. The point of that mountain was covered with bushes. It was 60 or 70 yards from where I was standing to those bushes on the point of the mountain. Mrs. Thompson was 10 or 12 feet from me when the first shot was fired, and when the first shot was fired she walked about that much further, and says: ‘You had better get out of here now; you are going to get hurt, and you are going to get hurt bad.’ And I told her that I would not go off in the condition I was in, that I might be carried off, but I would not go in the condition I was in; and we began to talk about the arbitration again, and then there was a second shot fired. It was from three to five minutes from the time the first shot was fired until the second one was fired. That second shot hit me. It hit me in the right shoulder or arm, and my team got to cutting up, and I told the boys not to let them get in the wire, and the Blanchard boy jumped and grabbed the team, and I told Glass to unhitch them from the plow, and by that time I had my shirt unbuttoned, and Glass asked me if I was hurt much, and I told him I thought my shoulder was broken, and when they got the teams unhitched they came to where I was, and I told them that I thought it was only a flesh wound, and Searcy asked me if we had better not cross the creek, and I told him, yes that I had better go home, that I was losing a good deal of blood, and we start* ed and got across the creek north of where I was standing and a third shot was fired. There was some brush on that creek, but not so very much at that point. Any one shooting at me from the point of the mountain could have seen me where I was when the third shot was fired. After the third shot, I went home and did not hear anything more. I did not hear the bullet from the third shot.”

Searcy Glass testifies, in substance, to the same state of facts, only he was not able to identify the man on the railroad dump.

Floyd Blanchard also testifies to the same state of facts, adding that when she left the first time he heard her say she was going to get Silas. He says he did not recognize the man on the railroad dump, but he had on a pair of bright yellow pants. He further testifies that, after the second shot was fired, he saw a man jump off the point of the mountain into the cut. The man he saw jump into the cut had on yellow pants; that this was the point from which the shots came, and after the shooting he went up there with the sheriff, and they found a man’s track and a woman’s track going in the direction of the Thompson home.

It can hardly he gainsaid that Mr. Thompson was the man these people saw on the railroad dump,' for in Ms testimony he admits that, after his wife left home, he decided to go to Grover Beck’s and borrow his 30-30 rifle to kill some rabbits that were destroying his potato patch; that he traveled the road these state witnesses say; and also admits that he had on yellow pants, and was on the railroad, dump.

Grover Beet testifies that appellant came to his house and borrowed his 30-30 rifle between 12 and 1 o’clock.

Of course, if we take the defendant’s testimony and the testimony of his witnesses alone, the question of whether or not appellant and his wife were acting together would not be raised, for Mrs. Thompson says on this trial she did not see her husband from the time she left until after the shooting. Appellant also so testifies, and his daughter-in-law Mrs. Myrtle Thompson’s testimony would strongly support that theory. But we must take the testimony as a whole, and, if it raises the issue that they were acting together, then the acts and declarations of each are admissible during the time of the preparation for the act and while it is being consummated. In Phillips v. State, 6 Tex. App. 380, the following quotation from Wharton on Evidence, § 1205, is quoted approvingly:

“The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all.”

Judge White, in the well-considered case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, discusses this question thorougniy, and holds that the old rule that a conspiracy must first be established ipso facto, before proof of acts and declarations of the individuals engaged therein are admissible against each other, is now exploded. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts or declarations. And in that case it is correctly held that an acting together may be shown by circumstances, for it is rarely ever possible to obtain positive testimony of a conspiracy. And while a conspiracy cannot be shown alone by the declarations of an alleged co-conspirator, yet such declarations may be taken into consideration in connection with other facts and circumstances in the case, and, if the evidence as a whole justifies and supports a finding that the parties were acting together in the commission of the offense, the testimony is admissible.

Now, what facts and circumstances does the state offer in evidence to show that appellant and his wife were acting together in making the assault on Smith. It introduces in evidence a telephonic conversation between appellant and Smith, in which appellant said, “G — d d — n you! I will make it hot for you.” A few dayá subsequent to this, while Smith is on the land, Mrs. Thompson appears on the scene and orders Smith off the land, and, when he refuses to go, she turns and leaves, saying as she did so:

“You will go when I get back. That she would go and tell Silas (appellant) and he would put Smith off.”

In about 10 minutes after Mrs. Thompson leaves, appellant is seen on the railroad dump, going in the direction of Grover Beck’s. He borrows a rifle at Grover Beck’s, getting either three or five cartridges. Appellant admits he went to Grover Beck’s and borrowed the 30-30 rifle, and that he had on bright yellow or khaki pants. About 10 or 15 minutes after appellant is seen on the railroad dump going in the direction of Beck’s, Mrs. Thompson reappears on the ground and again orders Smith off the land. Some discussion arose in which an arbitration was discussed.. When Smith asked Mrs. Thompson if Silas (appellant) would agree to it, she said appellant would be there in a few minutes. Smith asked her where appellant was, and she responded:

“He (appellant) was over in the field, and said that she told Mm to come over here; that he (Smith) was over here, and he started, but she did not know where he went.”

Smith replied that he had seen appellant and Silas had gone over to Beck’s to get his gun. Mrs. Thompson did not reply to this remark, for about this time a shot was fired from a clump of bushes at a point on the mountain some 60 or 75 yards away. When this shot was fired Mrs. Thompson said:

“You had better get out of here now. You are going to get hurt, and get hurt bad.”

A second shot was fired which struck Smith in the shoulder. Smith and those with him turned to go home, and while they were going a third shot was fired which went into a tent and struck an iron bed post. Eloyd Blanchard says, just before the third shot was fired, a man, wearing bright yellow pants, jumped down from this point on the mountain. When he saw Mrs. Thompson leave, she went in the direction of the point where this man was seen. Later the ground was examined, and a man’s track and the track made by a woman’s shoe were found, and near the clump of bushes from where the shots were fired a 30-30 empty shell was found. TMs shell fitted the gun appellant had borrowed from Beck that day, and when arrested at home that evening he was wearing yellow pants and had Beck’s gun in Ms possession. These and some other circumstances are relied on by the state to show that appellant and his wife were acting together, and we think would authorize a jury to so find. It may be that she did not know that he was going to shoot from ambush, if he did do so; but it certainly would authorize them to conclude that when she saw Smith at work on the plat of ground in question, and he declined to leave when she ordered him to do so, she went in search of her husband and found him, fox when she comes back she says she had found him, although she on the trial denies it. When she found him she explained to him Smith was plowing' the land. She was aware that he went to Beck’s after his 30-30 rifle, and she expected him to return with it and make Smith leave. She may not have understood that appellant would shoot from ambush, and she not be responsible for that act, but there was such an acting together in an effort to make Smith get off the land and in preparation to accomplish that object as to render her acts and conduct admissible on the issue of whether or not appellant was the person who fired the shot from the clump of bushes on the point of the mountain.

Appellant seems to think this would be compelling the wife “to testify against the husband.” Mrs. Thompson was not called as a witness by the state. Of course, Mrs. Thompson could not have been called to prove these facts, and if she had been appellant’s objection would be sound and tenable. But the state proved these facts and circumstances By other witnesses, and the acts and declarations of the wife are admissible against the husband, which are res gestee of the transaction, if she is an aider and abettor of her husband in the commission of the' offense. Judge White reviews the authorities and decides this question in Cook v. State, 22 Tex. App. 511, 3 S. W. 749. He says:

“With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of' Russell, they were admissible as verbal acts and were clearly parts of the res gestee, and consequently did not come within the rule announced in article 735, Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution.
“Again, the evidence as developed in this case shows that the husband and wife acted together in the commission of the offense, and are both principals, and the rule is uniform that the declarations of one of the parties principal made at the time, during the progress and in furtherance of the common design, are admissible in evidence and binding upon the other co-conspirators. Cox v. State, 8 Tex. App. 256 [34 Am. Rep. 746]; Loggins v. State, 8 Tex. App. 434.”

It may be that the court should have instructed the jury that if they did not find that Mrs. Thompson was acting with, aiding, and abetting her husband, they would not consider any testimony as to her acts or declarations, in passing on. the guilt or innocence of appellant. But appellant made no such objection, nor requested any such instruction, relying solely upon his objection that the testimony was inadmissible. This objection cannot be sustained, for the state introduced sufficient evidence, circumstantial and otherwise, to render the testimony admissible, and the court did not err in so holding.

On cross-examination of Charley Smith, appellant was permitted to ask him if he was indicted* for the murder of Ed Cash some 22 years ago. He answered that he was, but that the case against him was dismissed. Appellant then propounded to him the question if, since the killing of Ed Cash, he, prosecuting witness, had not been shot at from ambush before this time. The state’s objection that this was too remote was sustained by the court. The court in approving the bill states he had the witness state to him before ruling what his answer would be, and his answer would have been:

“That over 22 years ago one Ed Cash was killed by mob violence in Coryell county, Tex. C. G. Smith was charged with murder growing out of that transaction, the case against him never being tried, but having been dismissed. I permitted the proof of cross-examination of the witness Smith that he had been charged with murder in connection with the killing of Ed Cash, although, if the state had objected to it, it probably would not have been admissible on account of its remoteness. The defendant asked Smith if, after the killing of Cash, he (Smith) had not been shot at. The state objected to the question and answer, and I sustained it. The witness Smith would have sworn that shortly after Ed Cash was killed one of his brothers, to wit, Virgil Cash, did shoot at him (Smith), but that this took place about 20 years ago. If permitted to do so, Smith would have sworn to the facts as stated in this qualification, i. e„ that he was shot at by Ed Cash’s brother shortly after Cash was killed, but he would not have testified as to any other shooting by any other parties at any other time.”

This was too remote in time, and the court did not err in so holding.

In another bill it is shown that in presenting the case the district attorney said:

“That the plea of the defendant filed herein, wherein the defendant asked for the suspended sentence in case they found him guilty and assessed his punishment not to exceed five years, was a ‘baby act’ on the part of the defendant, and that if he (district attorney) was ever charged with a crime and was innocent he would never file such a plea. That the filing of the same was equivalent to an admission of guilt. That the law was enacted for the benefit of the young men, and did not apply to old men like the defendant.”

Of course, it was improper for the district attorney to say “that the filing of such plea was equivalent to a plea of guilty,” but it was not such error that an instruction by the court that it was improper, and that the jury should not consider it, would not have cured the error. Appellant requested no such instruction be given, and presented no special charge in regard thereto; consequently it presents no such error as will necessitate a reversal of the case. District attorneys should never use such remarks. The suspended sentence law was thought to he a humane provision of law, which might work a reform of first offenders and make of them good and useful citizens, and it applies to old as well as to young men. One may be innocent of any wrongdoing and yet, recognizing the strength of the net the state has woven about him, naturally fear the result. There is often a combination of circumstances, which a man innocently walks into, that he may not be able to explain satisfactorily to a jury, and yet never have thought of the commission of a crime. Under such circumstances, he can and should seek to take advantage of this law, and no improper motive should be ascribed to him for so doing; for, if it is permitted to be done, the innocent would be denied the privilege of asking the benefit of the law. One charged with crime naturally fears the result of a trial, although he may feel and know he is guilty of no wrongdoing; and had appellant excepted to the remarks and requested the court to instruct the jury that the remarks were highly improper, and then presented a charge instructing the jury not to consider such remarks, and the court had refused to give such instruction, we would not hesitate to reverse the case because of the improper remarks. For it is the duty of each and every one connected with the trial, the trial judge, the prosecuting attorney, and the attorney representing the defendant, to use their best endeavors to see that a fair and impartial trial is had, and each issue fairly presented. Appellant’s counsel must be diligent, as well as the others; for, if he is not, he cannot well complain of the matter after it is too late for it to have been remedied, when he could have had it remedied by prompt action.

No exception was reserved to the charge as given, no special charges were requested, and, as there was no error in the rulings of the court in admitting evidence, the judgment must be affirmed.

DAVIDSON, J.

(dissenting). When the opinion was handed down affirming this judgment, I noted a disagreement to that af-firmance. I do not propose to enter into any lengthy discussion of the matters involved, but in a general way to state a few reasons why I cannot agree.

This record makes it manifest, as does the opinion, that a great deal of the testimony introduced — and this over the objection of the appellant — were remarks of appellant’s wife and conversation had by her with other parties in his absence. This was introduced by the state as original testimony and for the purpose of showing a conspiracy between appellant and his wife. The wife cannot be used as a witness against her husband in Texas in cases of this character. Under all of the authorities that have been called to my attention, the declaration of the husband or wife cannot be used against the other to show a conspiracy, or to make out the state’s case. In the Cook Case, 22 Tex. App. 511, 3 S. W. 749, there was some testimony introduced and the ruling of the trial court sustained on the theory that it was res ges-tae; but an examination of that case will show clearly this case does not come within that rule. Cook and his wife were acting together at the time of that homicide, actually personally engaged in it, and the acts and declarations of each made at the time were held to be admissible. I do not question the soundness of the Cook Case, and, if these declarations of the wife and her husband would come within that rule, I should not have disagreed here. But here the presence of the husband is excluded and, in fact, at the time she made these statements prior to the shooting, the meeting of the assaulted party with his wife was not known to defendant, nor did the matters occur until appellant’s wife discovered the presence of the assaulted party and went to him and had those conversations which were introduced in evidence. The meeting between appellant’s wife and the assaulted party was purely accidental and unknown to appellant. I do not care to follow this thought further.

Another proposition germane to this, which I am convinced is correct, is that there cannot be a conspiracy between the husband and the wife as the term “conspiracy” is understood in law. That they may be principals in a criminal case may be conceded. This would depend on the facts. At common law the wife, of course, could not be a conspirator with her husband. In Texas the statute provides that, where an offense is committed by the wife in the presence or with the connivance of the husband, the wife is punish: ed differently from her husband. This is nót the rule as to conspirators. They are all punished alike. A conspiracy is a consummated offense and complete within itself, and the conspirators acting together are conspirators, whether the object of the conspiracy is ever executed or not. This is true by the express definition of conspiracy in our Penal Code. So under our statute, and under the common law, both, a wife cannot be a conspirator. This does not change the rule that she may be a principal subject to the statutory provision that her punishment may be different from that of her husband. It occuk; to me this was recognized in this case because the wife was not prosecuted. Under any view, therefore, the exceptions to the introduction of these declarations of the wife against her husband, used by the state over the protest of the defendant, are well taken and should have been sustained. I do not care to cite authorities to sustain these propositions further than above mentioned.

There are some other errors in the case, but I decided to make these few observations with reference to this phase of the case. I cannot therefore believe that this conviction ought to have been sustained. The judgment ought to have been reversed, and the cause remanded for trial in accordance with the principles of law.
      <&^>ir&r other eases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    McLANE v. HAYDON et al.
    (No. 695.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1914.
    Supplemental Opinion, Jan. 2, 1915.)
    1. Appeal and Error &wkey;>56L-®EC0RD — 1Time for Filing Statement of Facts — Statute.
    Under Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073), providing that any statement of facts, filed before the time for fifing the transcript in the appellate court expires, shall be considered as having been filed within the time allowed by law, where a case was tried at the March term of the comrty court, which adjourned on the 21st, no order appearing in the record extending the time for filing the statement of facts, which was shown to have been filed July 17th, such statement of facts was filed in time.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. &wkey;>564.] *
    2. Appeal and Error i&wkey;564 — Record—Time for Bailing Statement of Facts — Statute.
    Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073), providing that any statement of facts, filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within the time allowed by law, applies to the manner of filing the statement of facts and the time therefor when the cause is taken to the appellate court by petition in error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent Dig. §§ 2501-2506, 2555-2559; Dec. Dig. &wkey;s564.]
    3. Appeal and Error &wkey;>643 — 'Record — Statement of Facts — Imperfect Authentication — Waiver by Law — Filing of Motion to Strike — Rules of Court.
    Supreme Court rule 8 (142 S. W. xi) provides that all motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the' clerk on the motion docket within 30 days after filing of the transcript in the Court of Civil Appeals; otherwise, the objection shall be considered waived, if it can be waived by the party. Rule 9 (142 S. W. xi) provides that motion to dismiss for want of jurisdiction to try the case, and for such defects as defeat the jurisdiction in the particular case, and cannot be waived, shall also be made, filed, and docketed at that time, provided that, if made afterwards, they may be entertained by the court upon such terms as it may deem proper. Motion to strike a statement of facts was filed more than 30 days after filing of the transcript in the Court of Civil Appeals, on the ground that the statement was improperly authenticated by the trial court’s having certified it as true and correct only, as shown by the stenographer’s transcript. Iield, that the defect in the authentication was an informality relating to the manner of bringing the cause into the appellate court, not jurisdictional, and was waived by the delay in filing the motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 2791-2794; Dec. Dig. <&wkey;> 643.]
    4. Appeal and Error <&wkey;614 — Record—Certification of Statement of Facts by Attorney — Statute.
    Under Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann'. Civ. St. 1914, art. 2073), providing that, when the parties fail to agree upon a statement of facts, the judge shall not be required to prepare such statement, unless the party appealing, by himself or attorney, within the time allowed for filing, shall present a statement of facts and certify thereon over his signature that to the best of his knowledge and belief it is a full and fair statement of all the facts proven on the trial, where appellant’s attorney, presenting the statement of facts to the judge for approval upon disagreement of the parties, failed to append the indicated certificate, such omission did not render the statement of facts, as approved and certified by the judge, improper, and subject to striking on motion to the Court of Civil Appeals, since the statute is directory in the sense that the certificate is for the benefit of the trial judge, and he may waive noncompliance.
    LEd. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 2708-2713; Dec. Dig. &wkey; 614.]
    Error from Hale County Court; W. B. Lewis, Judge.
    Action by J. S. Haydon and others against John B. McLane. Judgment for plaintiffs, and defendant brings error. On motion to strike statement of facts.
    Motion denied.
    See, also, 160 S. W. 1146.
    Y. W. Holmes, of Plainview, for plaintiff in error. Fred O. Pearce and L C. Penry, both of Plainview, for defendants in error.
   On Motion to Strike Statement of Facts.

HENDRICKS, J.

The defendants in error move to strike the statement of facts from the record, upon the ground, among others:

“Because the same was not filed in the court below within the time provided by law, * * * and it appears from the certificate of approval that the county judge approving the same did so without authority of law.”

The cause was tried at the March term of the county court, which court adjourned on the 21st day of March, 1914. There appears no order in the record extending the time for filing the statement of facts. The record show's that the same was filed July 17, 1914. It is to be noted, however, that under the provisions of the Acts of the 32d Legislature, art. 2073 (section 7), amendment of 1911, with reference to the time for preparing and filing statements of facts, it is now provided:

“That any statement of facts filed before the time for filing the transcript in the appellate court expires shall be considered as having been filed within time allowed by law for filing same.”

Chief Justice Fly said, in the case of Heirs of Criswell v. Robbins, 152 S. W. 211:

“What purpose the Legislature had in view in passing such a clause, which practically sets aside all the other provisions, * * * is utterly inconceivable. But there it is, and under its provisions the statement of facts, although filed beyond the time legally given by the court, must be held to have been filed in time.”

This provision also applies to the matter of filing the statement of facts, and the time thereof, when the cause is taken to the higher court by petition in error. Louisiana Rio Grande Canal Co. v. Quinn, 160 S. W. 151.

A part of the certificate of the county judge appended to the statement of facts (after the statement by the court of disagreement by the attorneys) reads as follows:

“ * * * The county judge of Hale county has duly examined said statement of facts in connection with the stenographer’s transcript on file, and finds the same is a true and correct statement of the facts, and all the facts proven in said cause, as shown by the stenographer’s transcript, and same is hereby adopted, approved, and filed as the court’s statement of facts.”

The motion in this case to strike the statement was filed more than thirty days after the filing of the transcript in this court. Rule 8 (142 S. W. xi), promulgated by the Supreme Court, with reference to motions affecting informalities in bringing the cause to the appellate court, reads' as follows:

“8. All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party.”

We also quote rule 9 (142 S. W. xi), partially explanatory of the meaning of rule 8:

“9. Motions to dismiss for want of jurisdiction to try the case and for such defects as defeat the jurisdiction in the particular case and can not be waived shall also be made, filed and docketed at said time: Provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper.”

The rules of procedure governing matters of this character have been in existence for several decades. The nearest case we can find analogous to the particular question involved here is Railway Co. v. West Bros., 152 S. W. 181, which holds in effect that the failure of a clerk’s certificate to state that the transcript was a true copy of all the proceedings is a mere informality, so that a motion to dismiss on that ground should have been made within 30 days after the filing of the transcript, under said rule 8.

The position of appellee is that the court’s certificate exhibits a true and correct statement of facts, as shown only by the stenographer’s transcript, which, as to this cause is an unofficial document, and is not in accordance with a proper authentication, which has considerable force. However, we are convinced that the authentication, if imperfect, is an informality relating to the manner of bringing the cause into this court, and not jurisdictional, and hence is waived on account of the delay in filing the motion.

Article 2073, supra, also provides:

“That when the parties fail to agree upon a statement of facts, the judge shall not be required to prepare such statement * * * unless the party appealing, by himself or attorney, within the time allowed for filing, shall present to the judge a statement of facts and shall certify thereon, over his signature, that to the best of his knowledge and belief it is a full and fair statement of all the facts proven on the trial.”

The attorney presenting the statement of facts to the judge for approval, in this instance, did not append the certificate indicated; but we are of the opinion that the same is directory, in the sense that the certificate is for the benefit of the trial judge. 1-ie could refuse to approve any statement after disagreement between counsel presented by the attorney for the unsuccessful litigant, if the certificate was not appended, which, however, is a matter for the judge to decide; and, if he did approve, without such certificate, the lack of same would be unavailing to the opposite party.

The motion is overruled.

Supplemental Opinion.

Article 2073, in omitting the amendment of 1911, hereinafter quoted by us, with reference to the time of filing statements of facts, as said article appears in the compilation of the Revised Civil Statutes presented for adoption to the Thirty-Second Legislature of 1911, may be misleading to the profession. At the regular session of the Thirty-Second Legislature of 1911, this article (embodied in the Official Court Stenographer’s Act, and enumerated therein as section 7) was amended as follows:

“Provided that any statement of facts filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within time allowed by law for filing same”

—the same amendment construed by us in the original opinion upon motion to strike the statement of facts, and with reference to the meaning of which, as to the time of filing, the interpretation of other courts was followed. However, article. 2073, embodied in the Revised Civil Statutes of 1911, considered by the Thirty-Second Legislature, did not have the amendment appended as quoted by us (though passed by the same Legislature), and in view of the fact that section 17 of the general provisions contained in the final title of said Revised Statutes particularly prescribes that the laws enacted by the Thirty-Second Legislature are not repealed by the adoption of said statutes, but continued in force, it necessarily follows that said amendment, construed by this court and passed by the Thirty-Second Legislature, continues to be the law on the subject indicated, and is properly represented in Vernon’s Sayles’ Revised Civil Statutes, recently compiled. We make this explanation in view of the argument on the submission of the cause that as to article 2073 as it appears in said Revised Statutes, on account of not containing said amendment as quoted, the latter was not the law ax>plicable to the time of the filing of statements of facts, when in reality the same was continued in force by the same Legislature.

It is also urged in the argument that the amendment of 1911, as quoted by us, has reference to the time of the filing of statements of facts in the appellate court, and not in the trial court, and that by such a construction the previous provisions in said article 2073, with reference to the granting of extensions of time for filing statements of facts, would thereby mean something, and the act would become harmonious. The act, with the amendment of 1911, is incongruous; but we tbink appellee’s construction would make it more so, as the logical result of such a contention would be that in some appeals the statement of facts would not have to accompany the transcript, if the latter were filed in the appellate court before the full time expired for filing transcripts, which accompaniment is specifically required by the other provisions of the law.

There was no motion for rehearing as to this matter in the appellate court, and we are merely making these observations in view of the appearance of the article as it appears in the Revised Civil Statutes of 1911, which, without further investigation, might be misleading as to the matter of appeals.
      «gawFor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digesta and Indexes


author: HODGES, J.

text:
    MARSHALL & E. T. RY. CO. et al. v. MOORE.
    (No. 1485.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 7, 1915.
    Rehearing Denied June 10, 1915.)
    Appeal from Wood County Court; R. B. Bogeman, Judge.
    Action by A. L. Moore against the Marshall & East Texas Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    R. B. Howell, of Winnsboro, for appellants. M. D. Carlock, of Winnsboro, for appellee.
   HODGES, J.

This is a suit by the appellee against the appellants, the Marshall & East Texas Railway Company, the St. Louis Southwestern Railway Company of Texas, and the Missouri, Kansas & Texas Railway Company of Texas, to recover damages for injuries to a shipment of live stock. The case was tried before the court without a jury, and a judgment rendered in favor of appellee for $786.71.

The negligence alleged and relied on upon the trial consisted of unreasonable delays and rough handling. The assignments presented in the briefs of the appellants merely complain that the evidence was insufficient to support the judgment. The court filed findings of fact and conclusions of law. These are not complained of in any of the assignments of error. The facts found are sufficient to justify the conclusions of law and the judgment rendered.

We have also taken pains to examine the statement of facts, .and have concluded that the judgment of the court should be affirmed; and it is so ordered.


author: PLEASANTS, C. J.

text:
    HOLLIS et al. v. MYERS et al.
    (No. 6931.)
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1915.
    Rehearing Denied Oct. 14, 1915.)
    1. Public Lands &wkey;>178 — Sale by Awardee.
    Public land awarded to a purchaser in accordance with the statute is the subject of sale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dee. Dig. &wkey;178.]
    2. Public Lands &wkey;>178 — Conveyances — Rights oe Grantee.
    While, if a purchaser of public land from an original settler who has not completed his payments to the state and obtained a patent desires to have himself substituted for the original purchaser in order that he may carry out the contract with the state and have the patent issued to him, he must file his transfer in the General Land Office, his failure to do this in no way affects his title as against the original purchaser, and if such original purchaser completes the contract with the state and obtains the patent, the legal title thus obtained inures to the benefit of his vendee.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. &wkey;178.]
    3. Public Lands <&wkey;178 — Conveyances - Rights oe Grantee.
    Where an original settler on public land who had not completed his payments and obtained a patent conveyed to one who failed to file his conveyance in the General Land Office and obtain a patent, and thereafter conveyed to another party, who bought with full knowledge of the first conveyance, such subsequent grantee obtained no higher right by procuring the issuance of a patent to him than the original settler would have obtained had he obtained a patent after the first conveyance by him.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. <&wkey;> 178.1
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Trespass to try title by R. C. Myers and others against W. D. Hollis and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Powell & Huffman, of Jasper, for appellants. Garland Smith, of Jasper, and John B. Warren, of Houston, for appellees.
   PLEASANTS, C. J.

This is an action of trespass to try title brought by R, C. Myers, R. C. Conn, J. S. Walker, and C. Byrnes against W. D. Hollis and H. M. Bivins. Pleas in abatement were sustained to the causes of action asserted by all of the plaintiffs except the plaintiff My ears,1 and as to him defendants pleaded not guilty, and that they were innocent purchasers for value without notice of plaintiff’s claim. The cause was submitted to a jury in the court below upon special issues, and upon a return of the verdict judgment was rendered thereon in favor of plaintiff for the land claimed by him and against the defendants Hollis and Bivins and the sureties upon a replevy bond filed by defendants for the sum of $800, the rental value of the property as found by the jury for the time it was held by defendants under said replevy bond.

The facts disclosed by the record' are as follows: The land in controversy is a part of the north one-half of section No. 6, Houston & Texas Central Railway Company, survey in Newton county. On October 14, 1901, the north one-half of said section No. 6, containing 320 acres, was awarded by the Commissioner of the General Land Office to E. H. Bivins as an actual settler. Bivins made his payment and executed his obligation to the state in accordance with the terms of his purchase as -fixed by the statute. He completed his terms of occupancy, and on October 3, 1905, filed in the General Land Office proof of his occupancy as required by the statute. On December 22, 1904, after his three years’ occupancy had been completed, he and his wife by general warranty deed conveyed 20 acres of the land to W. B. Brown for a cash consideration of $175. Other conveyances by deeds of general warranty were subsequently made by Bivins and wife of different portions of the land to several different parties. Appellee Myers, by deeds from the vendees of Bivins and wife, acquired the title of said vendees. The deeds from Bivins and wife and the deeds to appellee were all promptly recorded in the deed records of Newton county, and ap-pellee took possession of the land and made valuable improvements thereon. None of these deeds, however, were filed in the General Land Office, and no steps were taken by ap-pellee, or any of the vendees of Bivins and wife, under whom appellee holds, to have themselves substituted for the original purchaser, nor to obtain a patent to the land. All of these sales were made and deed recorded, and appellee was in possession of the land prior to February 19, 1912, on which date E. H. Bivins, the original awardee of the land from the state, conveyed to his father, H. M. Bivins, the west half of the northwest one-fourth of section No. @, thereby conveying 80 acres of the said section, which includes the land in controversy, the consideration recited in the said deed being $100 and other valuable considerations. This deed was filed for 'record in Newton county and afterwards filed in the General Land Office and a patent was issued by the state to H. M. Bivins, assignee of E. H. Biv-ins, for the said 80 'acres of land, the date of the issuance of the patent being the 27th day of February, 1913. On the 17th day of March, 1913, H. M. Bivins, the father of E. H. Bivins, conveyed 20 acres of the said 80 acres to W. D. Hollis, one of the appellants, reciting a consideration of $500. The deed described the property conveyed as being’ one-half interest in the north one-half of an 80-acre, tract of land, known as the west one-half of the northwest one-fourth of section No. 6, and further recited that;

“The interest that is intended to be conveyed by the said H. M. Bivins is what is known as the R. 0. Myers Co. oil or artesian wells that is now on the above described property and it is the intent of this conveyance to convey only 20 acres of land.”

Neither of the appellants, H. M. Bivins nor W. D. Hollis, testified in this ease; nor was any proof offered upon the part of the appellants of the payment of the purchase money recited in the deed from E. H. Bivins to his father, H. M. Bivins, or in the deed from H. M. Bivins to the appellant W. Di Hollis. Nor was there any denial upon the part of appellants H. M. Bivins and W. D. Hollis of their knowledge that the land in controversy was in actual possession of uhe appellee R. C. Myers; nor did they deny that they knew that the deeds that he was holding under were on record in Newton county, Tex.

The appellee proved his title direct from E. H. Bivins, and the fact that his deeds were all recorded and general warranty deeds, and that he was in actual possession of the property in controversy, operating it and using it as a natatorium, at the time that E. H. Bivins attempted to convey the land to his father, H. M. Bivins, and that the appellants knew these facts. The proof further showedi that the appellants took forcible possession of the appellee’s property, or his natatorium, just prior to the filing of this suit, and that upon the filing of this suit appellee sued out a writ of sequestration and sequestered the property, and the appellants replevied and since the replevy have been in the possession of the property.

Appellants present various assignments of error which it is unnecessary to set out or discuss in detail.

The main proposition advanced under the assignments and relied on by appellants for a reversal of the judgment is that because appellee and his vendors failed tó file their deeds in the General Land Office and have themselves substituted for the original purchaser, they acquired no right or title in the land which can be asserted against H. M. Bivins, who after his purchase from E. H. Bivins had himself substituted for the original purchaser, paid the amount due the state, and obtained a patent for the land, nor against Hollis, the vendee of H. M. Biv-ins, notwithstanding both Bivins and Hollis, at the time of their respective purchases, had actual knowledge of appellee’s possession and claim to the land.

There is no merit in this proposition. The title acquired by a purchaser to whom an award of public land has been made in accordance with the provisions of the statute will support an action of trespass to try title, and it goes without saying that land so held is the subject of sale. If the purchaser of such land from the originad settler who has not completed his payments to the state and obtained a patent desires to have himself substituted for the original purchaser in order that he 'may carry out the contract with the state and have the patent issued to him, he is required by the statute to file his transfer in the General Land Office, but his failure to do this in no way affects his title to the land as against the original purchaser, and if the latter completes the contract with the state and obtains the patent, the legal title thus obtained by him inures to the benefit of his vendee. If E. H. Bivins, after completing Ms term of occupancy, had paid the balance due the state on this land and obtained the patent therefor, he would have acquired no title to any portion of the land which he had previously conveyed, and the legal title evidenced by the patent would have vested in those to whom he had sold the land.

Appellants, who bought with full knowledge of appellee’s title, obtained no higher right by the issuance of the' patent to H. M. Bivins than E. H. Bivins would have obtained had the patent been issued to him. The books are full of cases in which possession of the title of an awardee of school lands, who had not completed his payments to the state and obtained patent therefor, have maintained an action of trespass and recovered on such title. In the case of Smith v. Coble, 39 Tex. Civ. App. 243, 87 S. W. 170, it is expressly held that the title of such a purchaser is not affected by his failure to file his deed in the General Land Office. It seems to us that this is so obviously true that citation of authorities is unnecessary.

All of the assignments presented in appellants’ brief have been considered, and none of them, in our opinion, can be sustained. We think that upon the undisputed evidence no other verdict and judgment could have been properly rendered. It follows that the judgment should be affirmed, and it has been so ordered.

Affirmed.
      <S=>For other oases see same topic and KEY-NUMIitR in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    LINDSAY v. VOGELSANG et al.
    (No. 6980.)
    (Court of Civil Appeals of Texas. Galveston.
    June 18, 1915.
    Rehearing Denied Oct 7, 1915.)
    1. Vendor and Purchaser &wkey;>33<L-REMEDY oe Purchaser — Mistake — Recovery oe Payments.
    Interest paid on the excess of purchase-money notes, due to a mistake in acreage, was recoverable.
    I'Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig., <&wkey;334.]
    2. Limitation oe Actions &wkey;>37 — Statute!. Applicable — -Mistake—Action to Recover.
    An action to recover the amount of interest paid to defendants on notes through mistake of the parties as to the amount due which defendants had refused to. repay, all of which was paid or delivered to defendants within two years before the commencement of suit, was not barred by the two-year statute of limitations.
    [Ed. Note. — 'For other cases, see Limitation of Actions, Cent. Dig. §§ 1S2-186, 477; Dec. Dig. <&wkey;>37.]
    Appeal from Matagorda County Court; R. R. Lewis, Judge.
    Action by D. A. Lindsay against N. M. Vogelsang and another. Judgment for defendants, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Linn & Austin, of Bay City, for appellant.
   LANE, J.

This suit was originally brought by appellant Lindsay against appellees Vo-gelsang and Harty, in the justice’s court of precinct No. 1, 'Matagorda county, on the 4th day of May, 1914, to recover two sums of money aggregating $123.48, paid by plaintiff to defendants by the mutual mistake of all parties, and which sum of money was not in fact due by plaintiff to defendants. These two sums, $61.74 each, were paid by plaintiffs to defendant on the 6th day of November, 1912, and the 6th day of November, 1913, respectively. Appellant D. A. Lindsay recovered judgment in said justice court for the full amount sued for, and ap-pellees Vogelsang and Harty appealed from this judgment to the county court of said Matagorda county. In the county court ap-pellees pleaded: First, the statute of limitations of two years, in bar of appellant’s right to recover; and, second, that appellant for a valuable consideration had settled the matters in controversy, and therefore was estopped to recover in this action. The case was tried de novo in the county court before the court without a jury, and judgment was there rendered for the appellees Vogelsang and Harty. From this judgment Lindsay has appealed to this court.

At the request of appellant Lindsay, the trial court prepared and filed his findings of fact and conclusions of law. There is no statement of facts with the record, and we must therefore resort to the fact findings of the trial court to ascertain the facts shown at the trial.

The trial court finds that appellees Vogel-sang and Harty on the 6th day of November, 1911, sold to appellant Lindsay and one J. W. May by general warranty deed a tract of land supposed by all the parties to the transaction to contain 198.92 acres, at $40 per acre, and that in part payment therefor Lindsay and May executed ten promissory notes upon which interest was to be paid annually thereafter on the 6th day of November of each year until all notes were paid; that after Lindsay and May had paid two installments of interest, to wit, on the 6th day of November, 1912, and the 6th day of November, 1913, it was discovered by all the parties that the land sold contained only 176.14 acres, 22.05 acres short of the number of acres conveyed, and that by reason of this shortage in acreage Lindsay and 'May had executed and delivered their notes to appellees for $882 in excess of what they owed appellees; that, by reason of this mutual mistake on the part of all the parties to the transaction, Lindsay and May had paid interest on said $882 in the sum of $123.48, the amount sued for; that after this shortage in acreage was discovered, and after said interest had been paid, appellees credited Lindsay and May’s notes, which were still unpaid, with $882, but refused to refund the interest paid on the same for the two years from November 6, 1911, to November 6, 1913; that May transferred all interest he had in the matter in controversy to Lindsay; that Lindsay brought this suit on May 4,. 1914.

Upon the foregoing fact findings the trial court filed his conclusions of law as follows:

“I conclude as a matter of law that the plaintiff’s cause of action for the sum of $123.48 paid as interest upon the notes executed on November 6, 1911, as purchase money for the land conveyed to him on said date by the defendants by their deed of said date, is barred by the statute of limitation of two years, which is pleaded in this action; and that the two-year statute, rather than the four-year statute, applies to the claim sued on; and that judgment be rendered for the defendants against plaintiff under said statute ofi limitation.”

It is seen from the foregoing conclusion of law found by the trial court that he based the judgment rendered solely upon tlte erroneous conclusion that the facts found showed that the cause of action pleaded by appellant was barred by the statute of limitation of two years.

Without speculating as to the theory upon which the trial court reached such conclusion, we find that appellant’s cause of action was for the recovery of $123.48 paid to and received by appellees through mutual mistake of both parties and which appellees refuse to repay to appellant; that no part of same was paid or delivered to appellees for a term of more than two years prior to the institution of appellant’s suit on May 4, 1914, and therefore the court erred in rendering judgment for appellees and in not rendering judgment for appellant for the amount sued for. Wherefore the judgment of the court below is reversed, and judgment is here rendered for appellant for $123.48, together with 6 per cent, interest per annum on $61.74 from the 6th day of November, 1912, and 6 per cent, interest per annum on the remaining $61.74 from the 6th day day of November, 1913, until said judgment is paid.

Reversed and rendered.
      <g=^lTor other cases see same topic and KEY-^NUMBER in all Key-Numbered Digests and Indexes

      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IENDRICKS, J.

text:
    DAVIS v. PAYNE.
    (No. 800.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1915.
    Rehearing Denied Oct. 9, 1915.)
    1. Schools and School Districts &wkey;>106 — Annexation — Taxation — Constitutional Provisions.
    Const, art. 7, § 3, authorizes an ad valor-em tax on property within a school district at a certain rate provided that two-thirds of its qualified voters shall vote such tax. The whole territory of a common school district, which had previously voted a special school tax of 20 cents on each $100, was annexed, by Acts 29th Leg. c. 124, § 14$, to an independent school district subsequently organized within its territory and which had previously voted a special school tax of 50 cents on $100. Seld, that the merger did not destroy the special tax previously voted by the common school district, and that the new district might collect the 20-cent tax applicable to land situated in the common school district before the merger.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. §§ 149, 248-252; Dec. Dig. <&wkey;>106.]
    2. Statutes &wkey;>212 — Construction — Presumption Against Absurdity.
    The presumption against absurd consequences of legislation is no more than1 the presumption that the legislators are gifted with ordinary common sense, and applies only where there is room for construction by reason of the obscurity or ambiguity of a law.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 289; Dec. Dig. &wkey;j212.]
    3. Statutes <&wkey;181 — Construction—Inconvenience.
    The argument of inconvenience results where the language of the law is not clear, either express or implied, and extends to Constitutions and statutes.
    [Ed. Note. — For other cases, see Statutes, Cent.. Dig. §§ 259, 263; Dec. Dig. &wkey;181.]
    4. ScnooLS and School Districts <&wkey;>106— Taxation — Injunction—Parties.
    In a suit by the owner of lands liable to a special school tax of 20 cents, voted by a common school district after its annexation to an independent school district subsequently organized within the same territory, to enjoin the collection of a 50-cent tax voted by independent district previous to annexation, the independent school district itself was a necessary party.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 149, 248-252; Dec. Dig. <§&wkey;L06.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action for injunction by A M. Davis against H. H. Payne, ex officio assessor and collector of St. Jo, Texas. Judgment for plaintiff in part and for defendant in part, and plaintiff appeals.
    Affirmed.
    A. L. Scott, of St. Jo, and W. W. Alcorn, of Montague, for appellant. T. H. Yar-brough, of St. Jo, and W. W, Cools, of Montague, for appellee.
   I-IENDRICKS, J.

On the 7th day of April, A. D. 1891, the city of St. Jo, Montague county, Tex., became an independent school district, by an election held for that purpose. Thereafter, on the 14th day of June, A. D. 1910, the qualified voters of the independent school district voted a special tax, not to exceed 50 cents on the $100 valuation of all property situated within said district.

At the time of the formation of the St. Jo independent school district, there was situated, adjoining and around the independent school district, a common school district, No. 6, of Montague county, Tex.; and some time prior to the 1st day of April, 1912, certain qualified voters of said common school district, residing within that territory, presented to the board of trustees of the St. Jo independent school district a petition, soliciting the annexation of the territory embraced within the bounds of the common school district to the said independent school district. This petition, upon the date mentioned, by ordinance of the city council of the city of St. Jo, was adopted, and the limits of the St. Jo independent school district were, by virtue of chapter 124, § 148, Acts of the 29th Legislature, extended so as to comprehend the territory of the common school district within the bounds of the independent school district for school purposes only.

Prior to the merger, and the annexation to the independent school district, the common school district had voted, and there was existent, a special school tax of 20 cents on the $100 valuation; and subsequent to said merger there had been no special election for the creation of any other special school tax than those previously mentioned — the 50 cents special tax previously voted by the independent school district as it was originally constituted, and the special tax of 20 cents on the $100 valuation previously voted by the common school district, as originally constituted.

The appellant, A M. Davis, is the owner of 140 acres of land, situated within the added territory, annexed to the independent school district, and for the purpose of preventing the collection of the 50 cents special school tax, originally voted by the old independent school district, he applied to the district judge for an injunction, which upon hearing was partially granted and partially refused, the trial judge denying the injunction as to 20 cents on the $100 valuation but granting the same as to 30 cents; and the appellant contends that, after the addition of the territory in the common school district to the independent district, there could be no collection of any tax whatever upon the property in the additional territory unless a new election was held and a special school tax was voted by a majority of the qualified tax paying voters of the whole district, voting at an election to be held for that purpose, by virtue of section 3, art. 7, of the Constitution adopted September 24, 1909.

It is clear that an independent school district, which has previously voted a tax for school purposes, cannot, by a subsequent extension of its limits, including additional territory, acquire the right to levy and collect such tax on the property in the annexed territory without another election by the qualified voters of the whole district, ‘as merged, to determine the tax. The Supreme Court, in the ease of Crabb v. Celeste Independent School District, 105 Tex. 195, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146, announced the doctrine following the holding of the Court of Civil Appeals of the Fifth District, in the case Eagle Lake v. Lakeside Sugar Refining Co., 144 S. W. 709, construing section 3, art. 7, of the state Constitution, before the amendment of 1909, which, however, as applicable to the particular question, is practically the same, except that the old article provided that the special tax should be voted by two-thirds of the qualified property tax paying voters of the district, instead of a majority of such voters, as required by the amendment. The Supreme Court applied the familiar rule that where a power is expressly given by the Constitution, and the mode of its exercise expressly prescribed, such method of the exercise of the power is exclusive; but does the principle of the cases cited apply to the status of case presented here?

The trial judge _ evidently attempted to enforce 20 cents of the 50-cent levy, upon the theory that such an amount‘is a legal tax upon the property in the added territory, with the change of agency under the law, for the purpose of collecting the same; and that said tax having been legally voted may be enforced by the new agents of the annexed territory until a new election is held for the collection of a new special tax for school purposes. Appellant’s argument is, if we properly interpret the same, that the common school district (the territory of which was added to the independent school district) having been disorganized, on account of all the property in that district being merged in the other district, the special tax, previously voted by the common school district, was destroyed as a result of the annexation.

Upon this record, we presume that the 20 cents special tax previously voted in the common school district for school purposes was, when voted, a constitutional tax. If this tax could be enforced by the new agency created by the taxpayers of the common school district (the board of school trustees of the independent school district), and if the 50-cent levy, attempted to be enforced by the independent school district, could be said to legally include the 20-cent tax, legally existent, then the action of the district court is correct. The logic of appellant’s position is, if the whole territory of an adjoining district becomes annexed to an independent district, properly and legally under the statute, the result of this annexation is to make the previous tax in each district before merger absolutely void. We do not so construe the law. Unless the express prescription of the law, or the clear negation of the same, or the necessary implication, by construction, is such, we do not think it was the intention of the lawmakers to produce a result amounting to a total destruction of the taxes for one year, or until another election, where the annexation is such that another could not be voted and collected to meet the necessities of the school for that particular year.

“The presumption against absurd consequences of legislation is * * * no more than the presumption that the legislators are gifted with ordinary good sense. It is applicable, like all other presumptions, * * * only where there is room for construction by reason of the obscurity or ambiguity of the law.” Black on Interpretation of Laws, § 46, p. 130.

The argument of inconvenient results, where the language of the law is not clear, either express or implied, has always been a principle of construction, both as to Constitutions and statutes.

In the case of Rockwall County v. Roberts County, 103 Tex. 407, 128 S. W. 369, it is disclosed that Roberts county, prior to December 30, 1888, was unorganized and attached to Wheeler county for judicial purposes. Roberts county organized, detaching itself from Wheeler, on the date mentioned, and before any action of the commissioners’ court of the new county (Roberts) or by its officers, with reference to assessment and taxation of property in that county, a contract for jail and courthouse was made, and the district court and Court of Civil Appeals held that the issue of bonds for Roberts county for the purposes stated was not wholly valid, “unless the valuation was assessed in the county which is sought to be taxed by the issue of the bonds,” and that said bonds could not be based upon the assessed valuation made by Wheeler county of the property situated in Roberts county, when Roberts was attached to Wheeler, on the theory, we presume, that the assessment by Wheeler of the land in Roberts became nugatory when the latter was organized. The Supreme Court, however, held it could be used, and, while the analogy between the two cases is rather remote, there is some application we think of that case to this.

In the Crabb Case, and the Eagle Lake Case, supra, the independent school districts were attempting to apply a tax to the added territory which had never been voted by the whole district. Though it may be said that the independent district in this instance was attempting to do the same thing, the district judge restricted its acts to an amount, and to a tax, which had legality when voted, as against the constitutional contention here presented, and was legally applicable to the land in that district, unless annexation destroys it; and we are inclined to think that, in case of a merger of two whole districts, a special tax previously voted as a legal tax, by tlie voters of each district, could be collected by the agents of the whole district after annexation. The logical consequences of appellant’s doctrine is that the independent school district could not collect the 50-cent special tax upon property solely "situated in that district, which we believe does not ensue. If the agency of the independent district could collect the 50-cent tax as against the land in that district, as originally constituted, why could not the same agency collect the 20-cent tax applicable to land situated in the common school district as originally existent? We do not see any special inhibition by the Constitution of such a procedure, and the inconvenient and harsh results, ensuing to the community, and the maintenance of the public schools, are such as to induce that construction.

Appellant, in his application for the particular injunction, did not make the independent school district a party to his suit; he only sued the ex officio and city assessor and collector, for the purposes of determining the validity of the tax. The independent school district of itself is a necessary party to this suit, and, that being so, any judgment in this proceeding could not be properly operative against it. Vance v. Miller, 170 S. W. 838; Renshaw v. Arnett, 158 S. W. 1197; Voss v. School District, 18 Kan. 471.

Upon the whole, we think this judgment should be affirmed.

Affirmed.
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