text:
    CLAY v. STATE.
    (No. 4468.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.
    On Motion for Rehearing, June 13, 1917.)
    1. Criminal Law <&wkey;1092(ll) — Appeal — Preservation oe Exceptions.
    When accused excepted to the qualification of a bill of exceptions, and requested another bill, finally prepared by the court, it was incumbent upon him, if such bill was not correct to interpose objection, prepare another bill, and prove it up by bystanders; and, failing to do so, he could not complain of the bill.
    [Ed. Note. — Eor other cases, .see Criminal Law, Cent. Dig. §§ 2837, 2841.]
    2. Criminal Law &wkey;>598(6) — Continuance— Diligence.
    . Where the offense occurred June 19, 1915, and process for absent eyewitnesses was not issued until January, 1917, a few days prior to-the trial, and it was never returned, there was a total lack of diligence and refusal of a continuance for the absence of such witnesses was not error, especially when the application was a subsequent one.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §. 1337.]
    3. Homicide <&wkey;166(2) — Evidence—Motive-Admissibility.
    In a prosecution for murder, testimony that a few minutes before accused killed deceased he had trouble with him over deceased’s having had a negro arrested, and that he went back to the vicinity of deceased’s place of business with a gun, was admissible on the issue of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 321, 322.]
    Appeal from District Court, San Augustine County; J. A. Hancock, Special Judge,
    Will Clay, Jr., was convicted, of murder, and be appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    K. W. Stephenson and E. T. Anderson, both of San Augustine, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; the jury awarding him 30 years’ confinement in the penitentiary. This is the second appeal; -the former appeal being reported in 180 S. W. 277. The facts are not materially different from those on the former appeal, and it is thought unnecessary to make a statement of the evidence.

When the case was called for trial appellant moved for a continuance. The court stated to him he would allow him 15 or 20 minutes in which to prepare the application. Appellant demurred to this, and finally counsel were permitted to go to their office with a view of preparing the application. After being gone from 15 to 30 minutes, they returned to the courtroom and dictated the application to the court stenographer. The court states in the bill prepared by counsel that, when the 15 or 20 minutes offered counsel in which to prepare and present the-application were declined by counsel, he informed counsel that they might state it orally and then reduce it to writing. This was-declined, and the court then tendered counsel the court stenographer, to whom he might dictate the application. This was declined,, and counsel went away to his office to prepare the application. After being absent, awhile, he returned and finally dictated in the courtroom an application for a continuance. The court, qualifying appellant’s bill, states that this took about 1 hour and 30-minutes. To this qualification to the bill of exceptions prepared by appellant’s counsel objection was urged, and the court requested to write out a bill, which he did. Appellant objects to all this, and says he has not been treated fairly in the preparation and presentation of this matter.

When he excepted to the qualification-, of his bill as stated, and requested the bill finally prepared by the court, it was incumbent upon him, if he did not like the bill prepared by the court, to interpose his objection, and prepare one, and prove it up by bystanders. The court states that his bill-was prepared at the request of counsel, and-it so shows in the record, and, having accepted the matter in the situation it is placed in the record, appellant is in no condition to-complain. He had his remedy, if he did not like his treatment by the court, in preparing-a bill setting out the matter as he desired, it set out, and as he believed justified by the facts, and proving it up by bystanders, showing his view of the situation at the-time. We find no reversible error in this, matter.

Another bill presents an application for continuance on account of the absence of two witnesses, stated to be eyewitnesses to the homicide, who had removed from San Augustine to Milam county. The other two witnesses were citizens of San Augustine county. This killing occurred on June 19, 1915. This process was not issued until January, 1917, a few days prior to the trial. This process, it seems, was not returned. There is an utter want of diligence in the-issuance of process. Counsel for appellant state that they had just been appointed, were young men, and had not familiarized themselves fully with the case, and that prior to their appointment as counsel appellant had been defended by other attorneys, and it may be inferred from the record that they were no longer connected with the case. If process had been issued prior to this time, and the witnesses had attended or not attended, as the case may be, these matters should have been shown. That the question of diligence is one of importance in this case, especially in view of the fact that practically all of the absent testimony would be but cumulative of that given on the trial. It may be stated, however, this does not appear to be a first, but a subsequent, application.

Appellant reserved exception to the introduction of evidence going to show that a few moments before the homicide there was a difficulty between deceased and Clyde Roberts, and that deceased slapped Roberts, and Roberts struck deceased, causing him pain and bloodshed. Deceased (Perkins) applied to an officer, who was on the ground, for protection against Roberts, or for the arrest of Roberts, and the officer did arrest and take Roberts from the ground. When this happened, the state’s theory was that appellant became enraged about it, and made threats to kill deceased, because he “turned in” Roberts to the officer. All of the parties named, except the officer-, were negroes, and it was the 19th of June celebration. In connection with appellant’s outraged feelings at the conduct of deceased in having Roberts arrested, he went to where deceased was, and trouble ensued between them, and appellant, under some of the testimony, exhibited a pistol, and parties then took appellant away a few steps, and in pulling him ■or carrying him away he lost his hat. He went back to get his hat, or at least returned to the place where he had had the difficulty with deceased, and the shooting occurred. The state’s evidence goes to show he went back for the purpose of shooting, and did shoot deceased just as soon as he returned to the place where deceased had a refreshment stand. Appellant’s theory was that he went back for the purpose of getting his hat, and that deceased reached for and obtained a shotgun, which was at the refreshment stand, and he then shot.

Appellant’s contention is that the court was in error in permitting evidence of the trouble between deceased and Clyde Roberts. We cannot agree with this contention. If appellant became outraged on account of the fact that deceased, who was a negro, had a white officer to arrest another negro at their celebration, and made this a personal matter with the deceased, the trouble between •deceased and Roberts formed a predicate for appellant’s subsequent action, and, of course, became relevant and material to understand the reasons and motive of appellant in doing what he did. There was no error on the part of the court admitting this testimony. Nor was there any error in refusing special requested instructions withdrawing this testimony from the jury.

Finding no reversible error in the record, the judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. Appellant urges error in the opinion in overruling, among other things, the application for a continuance. It is contended that the court was in error in stating that the absent testimony was cumulative. The writer has reviewed the case with some degree of interest. The urgent and courteous manner in which the application is presented is commended. If it be conceded that the testimony is not cumulative, the question as to want of diligence is not to be questioned. The writer is of opinion still that the evidence may be regarded as cumulative, but under the view taken in the former decision, and now taken, it is a matter of not much importance. It was not the real basis of the ruling of the court with reference to the application. It was but an incidental statement, as will be observed in reading the original opinion. The want of diligence was a fatal question to appellant’s contention that the overruling of his application was error. There was not sufficient diligence to obtain the presence of the absent witnesses. This killing occurred on June 19, 1915, at a negro celebration, where there were a great number of negroes assembled in honor of their emancipation day. The indictment was returned by the grand jury on the 12th of the following July. There was a trial of the case, resulting in a conviction, followed by an appeal to this court in which a reversal was awarded. 180 S. W. 277. These matters are mentioned to show that the case was before the court from the return of the indictment until the refusal of this application, some time in January or early in ITeb-ruary, 1917. Process was not issued for these witnesses, so far as the record shows, at any time until January, 1917. There is no reason given or stated in the application why process was not issued earlier, unless it be the statement that the present counsel were not engaged in the case until subsequent to the former appeal and reversal. It would seem from this that the lawyers who originally defended had passed out of the case. Conceding all the commendable diligence on the part of present counsel in working up the ease and ascertaining the facts, still this would not account for want of diligence on the part of the defendant since the return of the indictment to secure the presence of the witnesses.

This was not a first, but a subsequent, application. The statement of facts shows that at the 19th of June celebration there were quite a number of negroes in and about the grounds, and that many of these saw and heard the incidents that led up to the tragedy, and heard' much that was said. Sbme of the testimony stated in the application was known to other witnesses; at least it reasonably so appears from the record and the statements in the application. Por instance, the witness Will Roberts, who was alleged to have left the county of San Augustine and gone to Milam county, would have testified to facts and statements that occurred in appellant’s presence and between Perkins, the deceased, and appellant’s father. This statement in regard to this particular matter is that appellant was talking to his father when the deceased (Perkins) came up and struck him, or slapped him. Appellant’s father is not accounted for and did not testify in the case, and so far as this record is concerned no process issued for him. This is mentioned incidentally. Appellant, being a participant in these matters which led to his killing Perkins, knew of these things, and knew they were said and done and occurred in the presence of quite a number of witnesses, and yet no diligence is shown until this application. The accused must use reasonable diligence to secure the attendance of his witnesses, and we are of opinion that this was not done by Mm, and no reason is given as an excuse for failing to use this diligence. We deem it unnecessary to notice the other matters. .

The motion for rehearing will be overruled.

       Foother cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    ROBERTSON v. STATE.
    (No. 4488.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    1. Witnesses <&wkey;304r — Reputation for Veracity.
    In a prosecution for burglary, where contradictions with reference to defendant’s statements and accounts of the burglary and his connection with them as shown by alleged confessions all out of court were used against him, evidence of his reputation for veracity was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259.]
    2. Burglary <&wkey;> 16 — Persons Liable — Principals — Receiver oe Stolen Property.
    The act of receiving stolen property some hours after it was taken from a house with knowledge that it was stolen would not make a person receiving the property a principal in the burglary, although he could be prosecuted for receiving fruits of the crime.
    [Ed. Note. — Eor other cases, see Burglary, Cent. Dig. § 3.]
    3. Criminal Law &wkey;>73G(2) — Confessions— Question for Jury.
    Wherever there may be an issue as to whether a confession is voluntary or not, it may be submitted to the jury for their determination.
    [Ed. Note.' — Eor other cases, see Criminal Law, Cent. Dig. §§ 1219-1221, 1702, 1710.]
    4. Criminal Law <&wkey;531(3) — Evidence—Sufficiency.
    In a prosecution for burglary, evidence held to show that an alleged confession, made to and ■ introduced by the district attorney, was' not voluntary.
    [Ed. Note.- — Eor other cases, see Criminal Law, Cent. Dig. § 1215.]
    5. Criminal Law &wkey;>519(l) — Confessions— Voluntary Confessions.
    To be voluntary, a confession must be in fact voluntarily given, and not forced or extorted in any manner, even by overpersuasion or promise or threats.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163, 1166, 1171.]
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Hubert Robertson was convicted of burglary, and lie appeals.
    Reversed and remanded.
    Will Glover and N. P. Woodward, both of Temple, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years’ confinement in the penitentiary.

There are two questions which require a reversal of the judgment. Appellant offered testimony of his reputation for veracity, which was rejected by the court. That may be disposed of by stating it was admissible on account of the contradictions with reference to appellant’s statements and accounts of the burglary used against him and his connection' with it as shown by what is termed confessions. Wherever a witness is contradicted by showing he made contradictory statements out of court from those made in court, we have always understood the rule to be that his. reputation for truth and veracity can be sustained. A bill of exceptions was reserved to the admission of a purported confession made by appellant to the then district attorney. The bill is very full, with questions and answers, and the confession and testimony bearing upon it. The proposition involved in it. is that it was not a voluntary confession. In order that there may be no question as to the exact attitude of the matter as shown by the bill of exceptions, verified by the court, the .whole bill will be copied in full:

“Be it remembered that on the trial of the above numbered and entitled cause, the following px-oceedings, among others, were had:
“That after the witness De Witt Bowmer was placed upon the stand by the state, who identified a written statement or confession made by the defendant as naving been made to the witness while he (the witness) was district attorney of Bell county, Tex., the state then offered in evidence said written statement or confession of the defendant, to which the defendant objected because he was under arrest, in charge of an officer, and in confinement at the time said written statement or confession tvas made, and because the same was not freely made, and was not the voluntary statement and confession of the defendant, but was a written statement and confession of the defendant procured by the witness De Witt Bowmer, the then district attorney, by force, threats, and abuse, and through fear of serious bodily injury, and after severe cross-examination by the witness De Witt Bow-raer, who was at the time said statement and confession was made district attorney of said Bell county, and after said witness Do Witt Bowmer had threatened to prosecute defendant for the offense of perjury if he did not make the confession, and send him, the defendant, to the penitentiary for a longer period of time than he could or would for burglary, after which objection the jury was withdrawn, and the following testimony of the witness De Witt Bowmer was introduced before the court:
“Direct Examination by Mr. White, for the State.
“Q. Mr. Bowmer, was that statement made to you? A. Yes, sir. Q. That warning printed in the statement was given the defendant? A. The whole statement, including the warning, was read to the defendant. Q. Before signing? A. Yes, sir. Q. And the defendant signed it in the presence of the two gentlemen who appear as witnesses? A. Yes, sir. Q. These two gentlemen were not officers? A. I do not think they were, but my best judgment is that they were not.
“Cross-Examination by Mr. Woodward, for Defendant.
“Q. Mr. Bowmer, under what conditions did the defendant make that statement; I mean by that, wasn’t he pretty roughly handled before the statement was taken? A. I do not know what you would call roughly handled; I can tell you the circumstance. Q. Well? A.-We began to investigate this moat stealing one day over there, and we got on this witness, Robert Swanson, and Sam Lane, and his wife, and the whole bunch of witnesses, and got a plenty of evidence to know who the guilty parties were, and Hubert Robertson was arrested before that time and brought over to Belton. Well, Pat White, his codefendant, was arrested that day, so, after X had all these other statements up there, why I got Pat White up in the justice court and got a confession from him, and I sent back over to Belton by officers coming over here, as X remember, and got Hubert Robertson out of jail and brought him back. When he first came over he claimed that he knew nothing about it, and told some kind of a story about it — I forget just what he said now — but anyway I did not think he was telling the truth, and I started in to make him tell it if I could, and so he told about tliree different stories, and he finally made this statement. Q. You told him you were going to whip him, and some of the boys did hit him? A. X cannot say that anybody hit him; I did not hit him. I started to once or twice, and ought to have, I guess, because he was an impudent negro, but I did not hit him. If any of the boys hit him I do not remember it. If they did, it was unjust, because I was the one going after the negro. I had the confession of Pat White, and I thought this negro was guilty, and I used such means as I thought was calculated to make him tell the truth. ' Q. You threatened you were going to hit him? A. I do not know whether I did or not; I have so many times told them that that I do not remember. Q. You expect you did? A. As I remember it, the negro kept telling what I did not think was the tmth, and I finally said, ‘I"am going to let you go, I had rather you tell a lie than the truth anyway, because then I will indict you for perjury and send you to the penitentiary for a longer term than I could for burglary.’ I cannot remember what I said to the negro because I had so many. Q.#But you did intimate that what he did tell you was a lie, and you were going to send him to the pen -for that? A. I told him I did not think he was telling a lie. Q. This is not a voluntary statement? A. I do not know, Mr. Woodward. Q. The negro was under arrest? A. It was my understanding they came to Belton and got him out of jail. Q. And you asked him questions, and he answered them, and from that you made up the statement? A. Yes. Q. And everything in there was in response to questions asked? A. Yes. Q. After he had made, I believe you said, three different stories? A. Two or three; I had him up there I reckon an hour.
“Redirect Examination by Mr. White.
“Q. After all the preliminary statements were made and this statement was written down, was it read over to the defendant? A. Yes, sir. Q. Did he make any objection to signing it? A. No, sir. Q. And was written down as he finally made it? A. Yes, sir. Q. And that was his statement? A. Yes, sir. Q. You did not compel him to sign that statement by threats or any other matter? A. No; I am sure that I did not on signing the statement. I do not remember. X expect I talked to the negro pretty roughly to make him tell what I thought was the truth, because I thought he was a little bit too defiant about the matter, but that was not about signing' the statement; that was about the statement he was giving; there was no objection about signing the statement as given, and there was no coercion or abuse to cause him to sign. All that was said was said before this statement was written.
“The Court: What did you say to him? A. I do not remember all I said to the negro; I think I said to him — maybé I cursed him a little.
“The Court: You did curse him? A. Maybe I threatened to strike him.
“The Court: Was there a ‘third degree’ proceeding? A. I do not know what you call the third degree; I felt like the negro was not telling the truth, and I thought I could get the truth out of him; I knew he was guilty, felt that way about it, and I felt like I was justified in using-such means; I told him he was a liar, and all such things as that. Q. Anybody else talk to him besides you at that time? A. Mr. Cooper was in there and out; I do not know whether he was in there at the time or not. This investigation lasted two days; we had every negro out of the bottom up there, and Mr. Cooper was in there a part of the time and Mr. Gray was there a part of the time.
“Recross Examination by Mr. Woodward.
“Q. Didn’t Mr. Gray threaten to run him in for living with a negro woman if he did not, tell it? A. I do not remember that; it could have happened. Q. You did abuse him and call him a liar? A. Yes; I called him a liar. Q. Possibly might have called him a son of a bitch? A. I do not know whether I did or not, Mr. Woodward; I ought not to have if I did, but I might have.
“And that after said foregoing questions were propounded to said witness by the state and by the defendant, in the absence of the jury, the jury was then recalled, and the same evidence as before set out was then offered before the jury, whereupon the court overruled defendant’s objection to the introduction of said statement, and the state then offered in evidence and read before the jury the before-mentioned statement, which statement is as follows, to wit:
“ ‘The State of Texas, County of Bell.
“ ‘November 4, 1916.
“ ‘My name is Hubert Robertson. I am under arrest in the custody of Jerry Gray, constable of precinct No, 5 of Bell county, Tex., and have been duly warned by De Witt Bowmer, of Bell county, Tex., the person to whom I am making the following statement: That I do not have to make any statement at all; that any statement made by me may be used in evidence against me on trial for the offense concerning which this confession and statement is made, do now make the following statement:
“ ‘Some time in January, 1916, Pat White and I got Louis Newsom’s horse and buggy in Tern-pie and drove out to Mr. W. H. Hutchinson’s place on Big Elm about seven or eight miles from Temple and stole some meat and lard out of Mr. Hutchinson’s smokehouse at nighttime. Pat and I first discussed going out to Hutchinson’s on Saturday afternoon before we went that night. Louis Newsom hitched the horse up for Pat White and I. Pat and I got out to M.r. Hutchinson’s house about 10 o’clock p. m. There was a light in Mr. Hutchinson’s house, and some one came out on the porch and went back in the house, and Pat says, “Everything is all right now.” Pat and I then went up to the smokehouse and went inside. I 'began feeling around in the smokehouse; it was dark inside, and felt a lard can. I took the lid off to see what the can contained; it was full of lard. Pat was on the other side of the smokehouse and called me over to Mm; he had found some fresh meat salted down and in box, and I held a sack which we had brought with us, while Pat filled it full of meat: it was so heavy Pat couldn’t carry it, so I carried the meat, and Pat got a can of lard. We took them a little ways from the house, set the lard and meat down, and both of us went back to the smokehouse and got another can of lard, we then loaded the two cans of lard and the sack of meat in the buggy and came hack to Temple; we stopped our buggy in front of Louis Newsom’s in Temple when we got back; we went in Newsom’s house, told him what we had, and Newsom gave me a drink of whisky; then Pat, Newsom, and I went out to the buggy, and then carried the meat and one can of lard in New-som’s house, and gave him some meat, and New-som set a big dish pan on the table, and we filled it very full of lard. Robert Swanson came by the buggy after I had come back out of the house, and I showed him the remaining lard and meat. Pat took his part of the meat, and I took my part over to Sam Lane’s, and left it in Sam’s smokehouse that night, and Sam told me the next day to take it away, and I took it away Sunday night, being the next night following the stealing of the same, and sold it to John McNeese for $3; we did not have Mr. Hutchinson’s permission to get the meat and lard.
“ ‘The door of the smokehouse that night was closed, but not locked.
“ ‘[Signed] Hubert Robertson.
“ ‘Witnesses:
“ ‘O. S. Alexander.
“ ‘J. K. Wood.’
“And after which said statement before set out was read in evidence before the jury, the state then placed upon the stand O. S. Alexander, who, after being sworn, testified, in substance, as follows:
“My name is O. S. Alexander. This signature as a witness to this statement is my signature. I was present at the time that instrument was signed by the defendant, Hubert Robertson. I do not remember just the date it was signed, but I went down town that night and was standing on the corner by the pop-corn wagon and J. K. Wood came up and said, Would you have any objection to groing to Cooper’s ofliee and witnessing some testimony?’ and said, We have to have some one else besides an officer,’ and when I got in the courtroom Mr. Bowmer had taken his testimony and had it written out when I got up there, and he read it over to him, called his attention to it, and said, ‘I will read this testimony over and be careful, and if there is any mistake, correct me,’ and he read it slowly and carefully, and when he got through he said, ‘Is that correct?’ and he said it was, and said, ‘Will you sign it?’ and he said, ‘Tes,’ and he turned to me and said ‘Mr. Alexander, will you witness this'?' and I said, ‘Yes,’ and he signed it, and I signed it. There was no threats made toward the defendant while I was there to induce him to sign any instrument. It was read over to him two times. I do not know what was said or done to the negro before I went up there.
“And the state then called R. L. Cooper and placed him upon the stand, who testified, in substance, oh behalf of the state, as follows:
“My name is R. L. Cooper. I do not hold any official position now. Up to the 20th of November I was justice of the peace at Temple, and held that position on November 4, 1916. I remember of the circumstance of the examination of some witnesses in regard to the theft of some meat from Mr. Hutchinson. There was two statements taken from Hubert Robertson; I was present all the time during the first and the second. I do not recall whether I was there all the time or not, I was probably in and out. I do not recall whether I was there all the time this statement was made that is witnessed by Mr. Alexander and Mr. Wood. I was there when Mr. Alexander came in and signed this as a witness. I remember that, and I think I saw the signature of Jake Wood. Hubert Robertson was warned, as such cases are always done, that he did not have to make a statement, and Mr. Bow-mer went ahead and took his statement. I was in and out probably at times; I would be in and hear part of it. I do not recall that I, was in all the time, I do not believe that I was, because I was attending to my affairs all the time, and usually when the attorneys are there to take the statements I pay very little attention to it. Mr. Bowmer was ther’e all the time and took the last statement; I think A. D. Dyess took his first statement. The first statement was taken before he was brought to jail. I remember some parts of that statement; in that first statement he did not admit going to old man Hutchinson’s and getting that meat. He told how he got the meat he did sell in the first statement, and it did not incriminate him in the way of a burglary from Mr. Hutchinson. The time the warning was made was not at the time it was read over to him; it was given to him before it was ever written. That is the customary rule, and I think it was done in that case. I usually do those things myself. I cannot say that I warned him at the time Mr. Bowmer came back to get another statement. Mr. Bowmer might have. It is not very likely that if any warning was given him that Mr. Bowmer gave it; it is very likely I did myself; but I cannot testify that I did or did not, and my testimony on that is based on my custom.
“And the defendant then and there in open court, at the time said written statement or confession was offered, objected for the reasons before given; and the court, over the objection of the defendant, as aforesaid, admitted said written statement or confession and permitted same to be read to the jury, to which actions and rulings of the court the defendant then and there in open court excepted for the reasons before given, and here now tenders'this his bill of exceptions, and asks that same be signed and filed as a part of the record herein, which is accordingly done, but with the following explanation and modification, to wit:
“It appearing to the court that there being a conflicting issue as to the facts surrounding the confession as to whether or not same was voluntary, the witness De Witt Bowmer, the then district attorney, who took the confession, and the witnesses Alexander and Oooper, stating that same was made in accordance with the requirements of the statute and the defendant denying that same was so made, it was a question of fact for the jury to determine and they were so instructed.
“F. M. Spann, District Judge Presiding.
“Will Glover, N. P. Woodward,
“Attorneys for Defendant.”

The remaining bills are largely upon the same line. Appellant’s contention was that he was not present at the burglary and had nothing to do with it. This confession which was introduced against him and relied on by the state shows be was present and participated in the burglary. He bad made a previous confession or statement, denying that be bad anything to do with the burglary, but it was not incriminating as to the burglary, and quite unsatisfactory to the state. It connected him with receiving some of the property taken out of the house some hours after it was taken, and with knowledge that it was stolen, but did not make him a principal in the burglary. He might be prosecuted, if those facts are true, for receiving fruits of the crime. He also proved an alibi by a woman who kept house where he was boarding and sleeping. Without discussing this confession and the manner of obtaining it and what occurred in securing it, it is evident from an inspection of what occurred that it could not be and was not a voluntary confession. The court admitted it on the ground that he would leave it to the jury to decide whether it was voluntary or not, which he proceeded to do in his charge. We suppose the jury must have found that it was voluntary, or they would not have convicted.

Wherever there may be an issue as to whether the confession is voluntary or not, it may be submitted to the jury for their determination, but in this case there seems to be no evidence that it was voluntary; the officer who took it, excludes the idea that it was voluntary. The facts that he states and the manner in which he obtained the confession exclude the idea of its being voluntary. There is nothing in the case to indicate that the fruits of the crime were discovered by reason of the confession. They had already been discovered. The record is full of testimony with reference to that matter, and this was either the second or third statement that was obtained from appellant, not as to where the property was or anything of that sort, but as his connection with the original act.

A voluntary confession is just what it says and ought to be voluntarily given, and not forced or extorted in any manner, even by overpersuasion or promise or threats.

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


author: RASBURY, J.

text:
    HOUSTON & T. C. R. CO. v. WRIGHT.
    (No. 7758.)
    (Court of Civil Appeals of Texas. Dallas.
    May 19, 1917.)
    1.Damages @=>112 — Measure — Injuries to Geowing Chops.
    One whose growing crops have been negligently injured or destroyed is entitled to recover the value thereof at the time and place of the injury, such value to be determined by the probable yield of the crops and their reasonable market value when matured, less the cost of cultivating, harvesting, and marketing.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 281-283.]
    2. Damages @=>188(2)- — Sufficiency op Evidence-Damage to Growing Crops.
    In an action for damages to growing crops, caused by overflowing them with surface water, where plaintiff was unable to state what would have been the market value of the crops based upon the probable yield when matured, aDd the only evidence as to the amount of damages was evidence as to the cost of plowing the land and planting the crops, the evidence was insufficient to support a verdict and judgment for plaintiff.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 511.]
    3. Damages @=>110 — Measure — Injuries to Land.
    If the value of land is totally destroyed by the negligence or wrongful act of another, the owner is entitled to recover the actual cash value of the land at the time its value was destroyed, with legal interest.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 273-278.]
    4. Damages @=>110 — Measure-Injuries to Hand.
    If the value of land is not totally destroyed, but is permanently injured, the measure of damages is the difference between its actual cash value immediately preceding the injury and such value immediately after the injury, with interest.
    TEd. Note. — For other cases, see Damages, Cent. Dig. §§ 273-278.]
    5. Damages <§=>109 — Measure—Injuries to Land..
    If an injury to land is temporary, the measure of damages is the amount necessary to repair the injury, and place the land in the condition it was immediately preceding the injury, with interest.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 273-278.]
    6. Waters and Water Courses @=>126(3)— Actions for Flowage — Instructions.
    In an action against a railroad company for diverting surface water upon plaintiff’s land, where there is evidence tending to show that the injury is traceable to the ac.ts of parties other than the railroad company, the trial court should submit such issue, unless it appears that the injury was due to the concurrent acts of different agencies not plainly separable.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 141, 142.]
    7. Waters and Water Courses @=>119(6)— Diversion of Surface Water — Plaintiff’s Liability.
    If the overflowing of plaintiff’s land with surface water was due to the concurrent acts of different parties, not plainly separable, all who contributed to the injury are liable jointly or severally.
    Appeal from Freestone County Court; George W. Fryer, Judge.
    Action by F. D. Wright against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    R. S. Neblett, of Corsicana, and Williford & Macintosh, of Fairfield, for appellant. W. J. Bryant, of Wortham, and R. M. Edwards, of Fairfield, for appellee.
   RASBURY, J.

This is an appeal from the judgment of the trial court entered upon verdict of the jury awarding appellee $400 damages, of which $300 was for damages to growing crops, alleged to have resulted from the act of appellant in negligently diverting surface water upon appellee’s land, submersing same, and damaging bis growing crops, and of which $50 was damage to the land, and $50 for permitting Johnson grass to- go to seed on appellant’s right of way adjacent to ap-pellee’s land. Appellant has prepared and filed briefs as required by law and the rules, but appellee has not. Accordingly we shall, as directed by rule 4 of this court (142 S. W. x), regard appellant’s brief as a proper presentation of the case and base our decision thereon.

By authority of the first six assignments of error it is contended, in effect, that the verdict of the jury, as relates to the item of $300, is without support in the evidence. This contention requires an examination of the evidence and an application to the facts deducible therefrom of the rules of law governing recovery of damages in cases of injury to growing crops, or, as it is commonly designated, the measure of damages. As to the rule, while varying terms have been used in the adjudicated cases to express it, it may be said generally that it is settled law that one whose growing crops have been injured or destroyed is entitled to recover the value thereof at the time and place of the injury, such value to be determined by- the probable yield of the crops and their reasonable market value -when matured, less the cost of cultivating, harvesting, and marketing. Sabine & E. T. Ry. Co. v. Joachimi, 58 Tex. 456; Tex. & St. Louis R. R. Co. v. Young, 60 Tex. 201; I. & G. N. R. R. Co. v. Pape, 73 Tex. 503, 11 S. W. 526; G., C. & S. F. Ry. Co. v. McGowan, 73 Tex. 355, 11 S. W. 336; G., H. & S. A. Ry. Co. v. Borsky, 2 Tex. Civ. App. 545, 21 S. W. 1012; City of Paris v. Tucker, 93 S. W. 233; Sunderman-Dolson Co. v. Rodgers, 47 Tex. Civ. App. 67, 104 S. W. 193; Texas Co. v. Lacour, 122 S. W. 424; Southwestern P. C. Co. v. Kezer, 174 S. W. 661.

As to the facts, we have carefully examined the evidence in the light of the rule stated, and 'conclude that it is insufficient as claimed to support the verdict and judgment. Without attempting to recite the testimony of appellee concerning the injury to his growing crops, which is all the evidence on that issue, in the formal manner in which it was introduced at trial, the most liberal deduction of fact therefrom is that, due to the negligence of appellant in failing to construct adequate culverts, sluices, and drains for its railway in the vicinity of appellee’s lands, it was submerged or overflown in May, 1913 and 1914, and his growing crops damaged. Appellee was unable to state what would have 'been the market value of the crops, based upon the probable yield when matured, but did testify that the cost of plowing the land and planting the crops was reasonably $4 per acre. Such are, in substance, the facts testified to by appellee, and constitutes all the testimony on the issue of value of the crops, and constitutes the basis of the verdict and judgment. That the facts related do. not satisfy those contemplated by the rule is obvious. The cost of plowing the land and planting the crops does not prove what would have" been the reasonable market value thereof at the time and place of the injury based upon the probable yield of the crops when matured. The most that such proof establishes is one item of expense to be deducted from the value to be ascertained in the manner stated and, by the cited cases is short of the proof required.

By the seventh and eighth assignments of error is presented the contention that the verdict of the jury awarding appellee $50 as damages to his land caused by overflows is without support in the evidence. In view of the fact that the case will be reversed because of the insufficiency of the evidence on the issue of damages to growing crops, we refrain for obvious reasons from any unnecessary discussion of the evidence; but on the issue of the damage to the land it can be said, using in substance the language of the ruling case on that issue in this state, that if the value of the land is totally destroyed by the negligence or wrongful act of another, the owner is entitled to recover as damages the actual cash value of the land at the time its value was destroyed, with legal interest. If the value of land is not totally destroyed, but is permanently injured, the measure of damages is the difference between its actual cash value immediately preceding the injury and such value immediately after the injury with interest. If the injury to land is temporary, the measure of damages is the amount necessary to repair the injury and place the land in the condition it was immediately preceding the injury, with interest. Trinity & Sabine Ry. Co. v. Schofield, 72 Tex. 496, 10 S. W. 575. By applying the rules so clearly stated in the case cited to the evidence as it may develop at another trial, the issue here raised will present no difficulties.

The ninth, tenth, and eleventh assignments of error complain of the refusal of the court to allow certain special charges requested by appellant, which directed the jury in effect that, if they believed that the overflow was due to the filling in of a drain ditch maintained by others adjacent to ap-pelleé’s land, they would find for appellant, and in connection with which it is claimed the evidence was sufficient to have supported such a finding. In connection with the issue so presented it is sufficient to say that appellant’s liability must rest upon a showing that its negligence proximately caused the injury; and if the evidence upon another trial is conflicting on that issue or tends to show that the injury was traceable to another source, the trial court should submit such issue, unless, of course, it appears that the injury was due to the concurrent acts of different agencies not plainly separable, in which event all who contribute to the injury by negligence would be liable jointly or severally. Shearman & Redfield, Law Nog. (6th Ed.) vol. 1, § 31; Railway Co. v. Norris, 184 S. W. 261.

The remaining assignment, which asserts that the court’s charge assumed damage to ap-pellee’s crops, is, in our opinion, hypercritical, since a reading of the charge as a whole makes it clear that that question was clearly left to the jury for their determination upon the evidence adduced on that particular issue.

For the reasons stated, the judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.
      (fcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    RUSSELL et al. v. BECKERT et al.
    (No. 5861.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.)
    1. Deeds <&wkey; 195 — Cancellation — Lack of CONSIDERATION — BURDEN OF BeOOE.
    Where a deed to land recited receipt of consideration, the burden is upon the person suing to cancel it for lack of consideration to show that the purchase money was not paid.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 584-586.]
    2. Witnesses &wkey;159(3) — Transactions with Persons Since Deceased.
    In suit to set aside deed for alleged nonpayment of purchase money, where defendant died, testimony of his wife that on a certain day he went to O. with $1,000 and came back without it, $1,000 being the consideration named in the deed, did not offend the rule of Rev. St. 1911, art. 3690, prohibiting testimony as to any transaction with or statement by the deceased.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 669.]
    3. Deeds <&wkey;59(l) — Record—Effect.
    When the grantor offers a deed for record he constructively delivers it to the grantee.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 136.]
    4. Payment <&wkey;65(4) — Consideration — Presumptions.
    A recital in a deed that the purchase money has been received is prima facie evidence of payment.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 170.]
    Error from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by R. H. Russell and others against August Beckert and others. On suggestion of defendant’s death his widow and children were made defendants. Judgment for defendants, and plaintiffs bring error.
    Affirmed.
    W. H. Russell, of San Antonio, for plaintiffs in error. Gordon Bullitt and Selig Deutschman, both of San Antonio, for defendants in error.
   FLY, C. J.

This is a suit originally filed against August Beckert by plaintiffs in error, hereinafter denominated plaintiffs, but aft-erwards in the third amended petition it was alleged that August Beckert died,' leaving surviving him his widow, Mrs. Phillipine Beckert, and two sons and four daughters, all of whom were made defendants, and will be so named, herein. The suit was instituted to cancel a certain deed made by R. C. Russell, deceased, of whose will plaintiffs were executors, conveying to August Beckert lots on Alamo Heights, in the city of San Antonio, on the ground of his obtaining a delivery of the same without paying for the land. In the alternative it was asked that plaintiffs have a judgment against defendants in the sum of $1,000, and that a lien for the purchase money be foreclosed on the land described in the deed. The cause was tried by jury, resulting in a verdict and judgment in favor of defendants.

The deed from R. C. Russell and Margaret F. Russell, his wife, to August Beckert, was of date June 28, 1911, and recited full payment of $1,000, the purcha.se money. It contained a full warranty clause, and no lien was reserved. It was recorded in Bexar county, Tex., on August 8, 1911. The property has since that time been rendered for taxation by the Beckerts. In the ledger of R. C. Russell was entered:

“June 28th, deeded to August Beckert lots Nos. 48, 49, and 50 in block 49, Alamo Heights-subdivision, $1,000.”

About that time August Beckert, grantee in the deed, left his home near New London, Wis., with $1,000, and went to Oshkosh, where R. O. Russell lived. He returned without the money. R. O. Russell died on August 31, 1911, after an illness of about two-weeks.

The deed recited full payment of the purchase money, and the deed was delivered to the grantee, through the mail, in August, 1911. There was no evidence, whatever, of fraud in obtaining possession of the deed. It was filed for record on August 3, 1911, in Bexar county, Tex., by request of R. O. Russell, to his grandson, William H. Russell. On June 24, 1911, the deed was sent to the grandson to obtain the signature of Mrs. R. C. Russell, who was visiting in San Antonio, and, at the request of R. O. Russell, who wrote that he was “in a hurry for the money,” it was promptly returned to him. On July 24th the deed was returned to Wm. H, Russell, in San Antonio, for record. It was received on July 28th and August 3d was filed for record. R. G. Russell was a good business man, and it is not probable that he would have had the deed recorded before he had received the purchase money. All the facts indicate the payment of the money.

The burden was upon appellants to show nonpayment of the purchase money, and they failed to adduce evidence even tending to prove that the money was not paid. On the other hand, there were circumstances, independent of the evidence of Mrs. Beckert, as to her husband going to-Oshkosh, with $1,000 and returning without it on the same day, sufficient to show payment.

The first assignment of error complains of the admission of the testimony of Mrs.Beckert as to the $1,000 hereinbefore mentioned, invoking article 3690, Revised Statutes, to sustain the position of plaintiffs, which prohibits, in actions by or against executors, administrators, or guardians, either party from testifying to “any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party.” We do not think the evidence was obnoxious to the provisions of ■the statute. Mrs. Beckert did not testify to ■any “transaction with, or statement by,” R. •C. Russell. She merely testified to the independent fact that on a certain day her husband left home for Oshkosh with $1,000 and returned without 'it. In the case of Potter v. Wheat, 53 Tex. 401, appellant offered to ¡show that, in pursuance of a contract with Samuel Wheat, deceased, and him, he raised ■certain corn and put it up in barns subject to the order of Wheat, and the Supreme •Court held:

“In our opinion the testimony of Potter as to what had been done with the corn raised, in ■order to show payment, was erroneously excluded. The statute does not disqualify a party to a suit by an administrator from testifying in the -case, except ‘as to a transaction with, or statement by, the intestate.’ * * * The evidence ■offered was not as to what had transpired between the deceased and defendant, nor as to what statements -deceased had made, but as to what defendant himself had done.' Such evi'dence could only be excluded on the ground that the statute forbids a party from testifying at all in his own behalf in a suit against him by an •administrator.”

To the same effect are Huff v. Powell, 48 Tex. Civ. App. 582, 107 S. W. 364; Williams v. Neill, 152 S. W. 693; Lester v. Hutson, 167 S. W. 321. August Beckert could have testified to the same facts, had he been alive, that his widow did. As before stated, had the evidence been excluded, appellants had failed to.make out a case, and in no event •could recover. There was no evidence tending to show that the money was not paid.

There was constructive delivery of the deed made by the grantor to the grantee •on August 3, 1911, when it was recorded in Bexar county. Snyder v. Ivers, 61 Tex. 400; Newton v. Emerson, 66 Tex. 142, 18 S. W. 348. No fraud was attempted to be shown that was used to procure such delivery. Such •delivery took place at the instance of the ■grantor three weeks before he became sick, ■and Harriett Beckert, the daughter of grantee, had nothing to do with such delivery. The recital in the deed of payment of the purchase money was prima facie evidence •that it was paid. Haldeman v. Chambers, 19 Tex. 1; Williams v. Talbot, 27 Tex. 159. The prima facie case made by the recital of payment was not destroyed by any evidence offered by plaintiffs.

The judgment is affirmed.
      <g^pFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    WELLS et al. v. COMMISSIONERS’ COURT OF PRESIDIO COUNTY et al.
    (No. 771.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.
    Rehearing Denied May 31, 1917.)
    1. Mandamus <&wkey;3(10) — -Right to Writ — Existence of Other Remedy.
    Where another remedy exists, there is no error in refusing mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 21-23.]
    2. Mandamus <&wkey;74(5) — Issuance of Election Certificate — Remedies.
    Where contestants alleged that the election officers wrongfully refused to count the ballots in a certain precinct, declared the offices in such precinct vacant, and appointed the defeated candidates thereto, their remedy was not by mandamus to compel issuance of the certificate of election, which was only prima facie evidence of a right to office, and would have required another suit; the remedy being by quo warranto.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. § 155.]
    Appeal from District Court, Presidio County; Joseph Jones, Judge.
    Mandamus by W. A. Wells, F. A. Mitchell, and Bill Bishop against the Commissioners’ Court of Presidio County and others. From an order refusing the writ, the relators appeal.
    Affirmed.
    Belcher & Sutton and C. E. Mead, all of Marfa, for appellants. W. C. Jour dan, of Marfa, and Jos. M. Nealon, of El Paso, for appellees.
   WALTHALL, J.

This appeal is taken from an order of the district court of Pre-sidio county, Tex., refusing to grant a writ of mandamus on the application for said writ by relators, W. A. Wells, F. A. Mitchell, and Bill Bishop, complaining of the commissioners’ court of Presidio county, and Lee Cartwright, W. G. Young, and J. A. Shannon, alleging in substance that at the general election held on the 7th day of November, 1916, appellant W. A. Wells was a candidate for the office of justice of the peace for precinct No. 1 of Presidio county, that Bill Bishop was a candidate for constable of said precinct, and that appellant F. A. Mitchell was a candidate for county commissioner for precinct 1 of said county; that the only candidate opposing W. A. Wells in said election was appelled Lee Cartwright; that the only candidate opposing Bill Bishop was appellee W. G. Young; that the only candidate opposing F. A. Mitchell was appellee J. A. Shannon; that all of the said candidates had their names regularly printed on the official ballots in said election for the respective offices; that the election was regularly held, and that the only voting box in justice precinct No. 1 and in commissioners’ precinct No. 1 was the Marfa box. It was alleged that the election officers of the Marfa voting box, after the polls were closed, counted the votes and cast up the result, which showed that appellants had each received a majority of the votes cast at said box for their respective offices; that the election officers made a return of said election, by making and signing a certificate as provided by law, showing the total number of votes cast at said box, and the vote cast therein for each candidate, and that by the face of the returns and said certificate appellants were each shown to be the successful candidate for the respective offices they sought; that when the commissioners’ court of said county met on the following Monday, the 13th day of November, 1916, to canvass the returns of said general election, said court failed and refused to open and canvass the returns and declare the result of said election for said offices, and entered an order in the minutes refusing the same; that the said court canvassed the returns for the remainder of the voting boxes of the county and declared the result; that the court at said term declared the said offices, justice of the peace, constable, and commissioner, vacant, and proceeded to appoint the defeated opponents of appellants to the respective offices for which they had been unsuccessful candidates, and said appointees have qualified and are claiming said offices by reason of said appointments; that appellants have demanded that the said commissioners’ court canvass the returns of said Marfa box, but that a majority of said court is opposed to so doing, and thereby appellants have been denied . certificates of election, and prevented from qualifying for the respective offices to which they are entitled by reason of said election. The details as to number of votes cast, the number received by each candidate, the manner of making out and transmitting the returns, poll lists, tally sheets, and the ballot boxes, etc., were fully set out in the petition.

Appellees, respondents, answered by general and special demurrers, general denial, and, specially answering, allege specific acts constituting irregularities in the manner of holding said election at the Marfa box, and further deny in substance that the returns of said Marfa box were made out and returned in accordance with law in these particulars: That the envelope purporting to contain the election returns for the Marfa box was not delivered to the county judge of said county, but that an envelope purporting to contain said returns was delivered to the county judge with other returns by the county clerk in the presence of the commissioners’ court then convened in regular session; that the envelope purporting to contain the returns was not sealed, and did not have the appearance of ever having been sealed; and that, after consideration, said envelope was sealed by the county judge in the presence of the commissioners’ court. Appellees denied that appellants had received more votes than their opponents; alleged that they have been duly appointed by the commissioners’ court to the several offices for which they were candidates, and commissioned by the Governor.

Appellants, by supplemental petition, alleged that the envelope containing the election returns from the Marfa box was sealed up ,by the election officers before the same was delivered to the county clerk. It was admitted that the returns intended for the commissioners’ court were not delivered by the election officers to the county judge, but were delivered to the county clerk, as the judge was not in his office, and was not in the town of-Marfa, and that in such event the law authorized and directed that the returns should be delivered to the county clerk. They alleged that it was the duty of the commissioners’ court to canvass the returns, and that they had no discretion in the matter.

The cases were filed separately, but, all parties agreeing, the trial court ordered that same be consolidated and tried as one case. The trial court prepared and filed findings of fact and conclusions of law as follows:

“1. I find that the election returns for precinct No. 1 in Presidio county, Texas, of the election held on the 7th day of November, 1916, were made in total disregard of the provisions of title 49 of the Revised Statutes of 1911 and in violation of said laws.
“2. I find that the county commissioners’ court of Presidio county, Texas, did on the 13t’h day of November, 1916, open the election returns and estimate the result, and recorded the state of the polls in each precinct, except the one from the precinct in question, and in reference to which they made and entered the following order, to wit: ‘Commissioners’ Court Minutes, November, Regular Term, A. D. 1916. Monday, the 13th day of November, 1916. The matter of opening and estimating the returns of the election held on November 7, 1916, in Presidio county for presidential electors, United States senator, congressmen, state, county and precinct officers, coming before the commissioners’ court on this, November 13, A. D. 1916/ and the court having considered the affidavits presented showing the illegality of the election and returns from the box at Marfa, precinct No. 1, and the returns not having been made as required by law, and the opening and consideration of such returns from said precinct being prohibited by article 3031 of Vernon’s Sayles’ Civil Statutes of 1914, it is the order of the court that said election returns from said election precinct No. 1 be not opened and estimated, and that the election returns from other election precincts of Presidio county be opened and estimated as required by law; this order being passed on motion duly made and seconded, County Commissioners H. B. Young, J. E. Parker, and James A. Shannon voting in the affirmative, and Commissioner R. E. L. Tyler voting in the negative, and County Judge W. M. Ellison merely presiding. It is the further order of the court that affidavits read by the presiding judge of .the court in reference to the Marfa precinct No. 1, respecting the conduct of the election officers and making of said returns, be entered on the minutes of the court; such affidavits being made by W. T. Davis, F. W. Jordan, T. B. Bal-lew, Harry Richardson, S. R. Miller, Miss Lo-rina Shannon, and Andrew H. Young.’
“3. I judicially know that Mr. Belcher, of the firm of Belcher & Sutton, whose names are signed to relators’ petitions, is the district attorney of the Sixty-Third judicial district of Texas, which includes Presidio county.
“4. I find that the respondents Lee Cartwright, J. A. Shannon, and G. W. Young have each qualified for the respective offices to which they were appointed and have been commissioned by the Governor.”
Conclusions of Law.
“1. I conclude that the county commissioners’* court acted strictly within the powers reposed in them by article 3031, Revised Statutes of Texas, and that their action in ascertaining the necessary facts to the conclusion asserted in their order or judgment was and is judicial in its nature and not subject to interference by writ of mandamus. Bailey on Habeas Corpus, vol. 2, g 199; McCrary on Elections (4th Ed.) § 266.
“2. The purpose of the writ of mandamus is to compel action, and it will not lie to undo what has been done; and especially is this true where the law requires a judicial determination to be made of the thing done, such as the decision, whether the act should be done or not, as is plainly required of the commissioners’ court by article 3031, and.as the order of said court in this case plainly shows they did.
“3. There is no provision of the law that in any way limits or prescribes a method by which the commissioners’ court should ascertain that a particular return had been made according to the law as required by article 3031, and said article inhibits the opening or estimating of the returns, unless made in accordance with the provisions of title 49, which comprehends the whole election law, and I thex-efore conclude that said court had a right to act on their own personal knowledge, or information brought to them in any manner they were willing to accept and act upon as showing a compliance or noncompliance with the law. In this case, the commissioners having acted upon evidence which they deemed sufficient, their action cannot be controlled by the writ of mandamus, because, when it is addressed to a subordinate tx-ibunal, it can only compel them to exercise their functions, which they have _ done, but they cannot be required to decide in a particular manner, as re-lators are seeking to have them do in this case. People ex rel. v. Council, 78 N. Y. 33, 34 Am. Rep. 500.
“4. The relatork have at least three adequate remedies under the Constitution and laws of this •state for the redress of any wrong they may have sustained in the matters complained of in the petition, and they would necessarily have to resort to one of those l’emedies, even if the writ should be granted, in order to attain their purpose, and for this reason, also, they are not entitled to the writ as prayed for.
“Relators excepted to the foregoing conclusions at the time they were announced and gave notice of appeal.”

On the above findings and conclusions, the trial court entered an order refusing the writ.

We think we need only to pass on the question: Is such action on the part of the commissioners necessary in order to secure in full the right which is sought to be enforced? The writ of mandamus must be the last resort. The rule is stated to be by our Supreme Court in Arkanas Building & Loan Ass’n v. Madden, 91 Tex. 461, 44 S. W. 823, and in Hogue v. Baker, 92 Tex. 58, 45 S. W. 1004, that if relators, in legal contemplation, are left in no worse position without the writ than they would be, should a mandamus issue, the writ should be denied. It was held in Dean v. State, 88 Tex. 290, 30 S. W. 1047, 31 S. W. 185, in a quo warranto proceeding to try title to an elective office, that while it is the plain and imperative duty of the commissioners’ court to canvass the vote and declare the result, and, should they refuse, they may be compelled to perform that duty, yet the court held in that case that the relator had- the right to bring the action immediately upon the court’s refusal to canvass the vote and declare the result. Should the commissioners’ court now open up the returns and declare the result of the election at the Marfa box, and should it be found that the returns gave relators more votes than respondents, and thereby entitle them to a certificate of election, that declaration and certificate would not have the effect to oust respondents of the offices they now occupy. The certificate of election is but prima facie evidence of the right to the office named therein, and a suit of some character would still be necessary. We think we need not pass upon the question as to the change, if any, in the burden of proof in the suit, as showing the want of an adequate remedy, since our Supreme Court in Dean v. State, held that an information in the nature of a writ of quo warranto is an appropriate remedy in such cases, and in a case in which the commissioners’ court had refused to canvass the returns and declare the result. Holding as we do, and for that reason only, that relators have a sufficient, appropriate, and adequate remedy to enforce whatever right they might have to the offices sought, we believe the trial court was not in error in refusing to grant the writ of mandamus.

The case is affirmed.
      <g=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests'and Indexes


author: PLEASANTS, C. J.

text:
    OTTO v. HARRIS COUNTY et al.

    (No. 7296.)
    (Court of Civil Appeals of Texas. Galveston.
    April 6, 1917.
    Rehearing Denied April 26, 1917.)
    Highways &wkey;>113(3) — Contract fob Road Work.
    Where, under contract terminable by either party at any time, providing for sei-vices of plaintiff and team at $4 a day on Harris county roads, he to employ at $2 a day necessary laborers to aid him, plaintiff performed services in such work, and also in repaii'ing a washout-of a sewer or culvert, paid the laborer's employed, and bought necessary matei’ial, his account thei-efor amounting to 8352.40, he was not barred from, recovering such account from the county, although it was apparent that the cost of repairing the sewer would exceed $50, by Harris County Road Law (Sp. Acts 33d Leg. e. 17) §§ 9, 10, requiring sealed proposals for the purchase of necessary tools, teams, wagons, etc., where the contract is over $50, he not ’binding' himself to complete any specified work, and his paying the laborers amounting to no more than a purchase of their claims.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 348.]
    Appeal from Harris Comity Court; Clark C. Wren, Judge.
    Action by H. B. Otto against Harris County and others. From judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Stanley Thompson, of Houston, for appellant. Fisher, Campbell & Amennan, of Houston, for appellees.

       Application for writ of error dismissed June 13, 1917.

   PLEASANTS, C. J.

This suit was brought by appellant against the county of Harris, the commissioners’ court of said county, the county auditor, and W. H. Lloyd, one of the, members of the commissioners’ court, individually, to recover against said county the ■sum of $352.40, alleged to be due plaintiff for labor and the hire of teams furnished the county in repairing its public roads under a contract made for .the county with plaintiff by the defendant Lloyd, and to compel the defendant auditor to approve plaintiff’s claim for the amount stated. In the alternative, plaintiff prayed that, if it should be found that defendant Lloyd was not authorized by the commissioners’ court of Harris county to make the contract sued on, plaintiff have judgment for the amount due him against .the defendant Lloyd individually.

Defendants all answered by general demurrer, special exceptions, and general denial, and specially denying the authority of Lloyd to make the contract, pleading sections 5, 9, and 10 of the Harris Oounty Road Law, alleging that said contract, being for more than $50, must be let out by bids, as required by said section 10 of said law.

The trial in the court below without a juiy resulted in a judgment, in favor of all the defendants, that plaintiff take nothing by his suit. At the request of appellant the trial judge filed his conclusions of fact and law. These conclusions are as follows:

“On a date prior to the time the work in, question was done, W. H. Lloyd, who was then commissioner of precinct No. 1 of Harris county, Tex., contracted and agreed with the plaintiff, H. B. Otto, to the effect that Otto was employed by Harris county, and his duties were to be superintending the unloading of shell for the repair and maintenance of about six miles of shell road in said precinct, and himself also to labor, and to furnish a team and wagon on the work of hauling and spreading the shell so unloaded in the repair and maintenance of said road; Otto being at the time authorized by Lloyd to employ, at a rate then fixed at $2 per day of eight hours work, with timo and a half of overtime and holidays, the necessary men to do such unloading. It was then agreed that Harris county was to pay Otto the sum of $4 per day for the said services ■of himself and team for each day they worked. This agreement was for no definite time. It was understood that the county or Lloyd or Otto could terminate such employment at any time. At the time this agreement was entered into there was, at the place of the unloading, about 169 yards of shell to be unloaded from the ears, and it was understood that additional shell was to be sent down ánd was to be unloaded as needed. Otto went to work under this agreement, and furnished his team and wagon, and employed additional help for unloading the shell as needed. The help that Otto employed he himself paid at the rate prescribed. Otto borrowed the money necessary to pay this help from the bank, giving his personal notes therefor.
“Subsequent to the making of this agreement, and while Otto was so working, it was found that, at a place on the said roads, a sewer connecting the road had been undermined by a washout, and Lloyd asked Otto if he could fix it, and, when Otto replied that he could do so, Lloyd instructed him to hire such labor as was necessary and to go to work and fix this washout, it being then agreed that the rate to be paid for the labor so hired was the same as was fixed in the original agreement between Lloyd and Otto; the correcting of the washout requiring the removal of an old sewer and replacing it with a new one, also the excavation necessary for this work, and the filling in and repairing of the road. The labor of many men was required. Otto did his work of correcting the washout, employing for the purpose many men, and at the same time continued the work of unloading, hauling, and distributing shell on the balance of the roads. He paid out for labor which was employed at the prescribed rate, in addition to his own, in the fixing of this washout, the sum of $73, and for unloading shell $107.90, and in addition he paid out $6.65 for lumber which was used in said work. At the time the agreement was made between Otto and Lloyd for the fixing of this sewer it was apparent that the total cost of the work would be considerable more than $50, and the work of this repair and the material used therein was reasonably worth $187.55, this being the amount that was actually expended thereon by Otto. Under the agreement first made with Lloyd, Otto rendered his services and furnished the work of his team 40^ days, for which he has not been paid.”

The court further found that other persons worked, a total of 635 hours, at 25 cents per hour, and that Otto paid them $59 and more. The court further found as follows:

“After all this work was done and money paid out by Otto, he rendered itemized bills to the county covering said work, which bills were for the months of Hay and June, 1914, and appear on a form evidently in use at one time or another by the county, styled, to use the language in which they appear, ‘Time and Fay Roll,’ and those bills showed that the plaintiff, Otto, who was. denominated therein as following the occupation of road repairer, and showed the names of the other persons above mentioned as following the occupation of ‘unloading shell,’ and others as following the occupation of ‘work undermining road,’ and purported to show the number of days and hours performed by each man, the amount due for such work, and there being also included in the bills thus presented an item of ‘Bill of Lumber’ for $6.65. The accounts thus presented to the county aggregated the sum of $352.40, of which $172.15 was the amount of the June account, and $180.25 of the May account. When presented these two amounts were certified as being correct by the plaintiff, Otto, and O. K. by Commissioner Lloyd. When these accounts were submitted to the county auditor he refused to approve them. Subsequent to this refusal the plaintiff, Otto, filed 14 different accounts against Harris county with the auditor, separating the same items as approved in his original accounts, so that each of the 14 bills presented were for less than $50. Six of these appear tó bo for work unloading shell, one for work on Bay Ridge road, one for work on Morgan’s Point road, and one for work on Sylvan Beach road, and one for work excavating on sewerage, one cleaning out ditch and filling excavation, and one for taking out sewerage and placing in 24' galvanized sewerage, and one for lumber bill.
“The auditor refused to approve any of the 14 accounts thus presented. The county commissioners’ court passed an order and entered upon their minutos a motion or resolution in which it stated substantially that Otto had performed his services, and that the amount to which he was entitled therefor was $352.40, and used the following words: ‘Now, therefore, the commissioners’ court of Harris county, in so far as they are authorized so to do, do hereby approve the said account of the said H. B. Otto for the aforesaid sum.’ The auditor still refused to pay said account, and Otto filed this suit to compel the auditor to audit and approve the accounts and the county to pay them. The auditor of Harris county contends, that Lloyd was not authorized to make the agreements aforesaid, and that the commissioners’ court was not authorized to make said agreements or to ratify them. No proposals of any kind were ever asked for nor received by the commissioners’ court concerning this work.”

The court’s conclusions of law were as follows:

“Under the facts above found, the agreements made by Lloyd and Otto, considered either together or separate, were a contract exceeding $50 in value, within the meaning of section 10 of the Harris county road law, which provides: ‘Where * * * the contract sought to be made shall exceed $50 and shall not exceed $500, * * * sealed proposals without advertisement shall be asked from as many as three persons * * * based upon written orders or specifications, * * * and * * * the contract accepted with the lowest and best bidder.’ The Legislature having laid down the method to be followed by the commissioners’, court in making such agreements as these, this method is exclusive, and the agreements made, however provident, are void, and Otto can take no benefit 'from them nor the work he- did under them. Since the commissioners’ court could not itself have made such agreements, it being without power in law so to do, it cannot ratify the act of Lloyd in making them. No contract to pay on the part of Harris county or the commissioners’ court could be implied from the facts that the county has received the benefit of the work, for the reason that the commissioners’ court has no legal right to make the agreements, and cannot be bound by implication to do what they could not do directly.”

Under approriate assignments of error, the appellant assails the conclusion of law of the trial court that the commissioners’' court of Harris county was without authority to make the contract with plaintiff upon which this suit is brought without advertising for bids therefor as provided in the Harris County Road Law, and that, such contract being illegal, plaintiff is not entitled to recover thereon.

These assignments must be sustained. The provisions of the law upon which the holding of the trial court is based are as follows:

“Sec. 9. Subject to tbe provisions of this act, the commissioners’ court shall have tbe right, and it shall be its duty, from time to time, to purchase any necessary tools, teams, wagons, machinery, material or supplies, and to employ any necessary men or teams, and to make, on behalf of tbe county, all necessary contracts to carry this act into effect: Provided, that' in all purchases or contracts amounting to over five hundred ($500.00) dollars, bids shall be advertised for as now provided by law.
“Sec. 10. Where the tools, teams, machinery, supplies or other things sought to be purchased, or the contract sought to be made, shall exceed fifty ($50.00) dollars, and shall not exceed 'the sum of five hundred ($500.00) dollars, and shall not be necessary to advertise for bids', but sealed proposals without advertisement shall be asked from as many as three persons, firms or individuals, or as many more as offer to bid, based upon written orders or specifications, and same shall thereupon be opened by the court, if in session, or by tbe finance committee, if the court is not in session, and the purchase made, or tbe contract accepted, with the lowest and best bidder. Tbe "substance of each bid shall be tabulated by the clerk, and shall be recorded in the minutes of the next meeting thereafter. Copies of all specifications shall be filed with the county auditor at least forty-eight hours in advance of the letting.” Acts of 33d Legislature (Special Laws), p. 66.

We do not think these provisions of the statute have any application to the agreement under which plaintiff was employed and performed the services for which he seeks compensation in this suit. The trial court finds, and the undisputed evidence sustains the finding, that plaintiff- made no contract to work for the county for any specified time. He agreed to work and furnish a team for the county in hauling and placing gravel on certain named public roads for the sum of $4 per day, and to employ for the county the .necessary laborers to assist in the work, these laborers to- be paid by the county the sum of $2 per day. The agreement to repair the culvert or sewer was made upon exactly the same terms. It may be conceded, as found by the trial court,- that it was apparent at the time the work began that the total cost of repairing the sewer would exceed $50; but plaintiff did not bind himself to complete the work, and. the services performed by him in this work were performed under the original agreement to work and furnish a team for $4 a day, which contract, as found by the court, could be terminated by either-party at any time. The amount paid by plaintiff to the laborers employed by him for the county was, in effect, a purchase- of the 'claims of the laborers who were hired by the day by plaintiff for the county at the wage agreed to be paid to them by the county, and it is, we think, clear that the payment of these wages by the plaintiff, and his right to recover the amount so páid, cannot be affected by the -provisions of the statute above quoted.

Upon the fact findings of the court and the undisputed evidence, the plaintiff was entitled to judgment for the full amount claimed by him. It follows from this conclusion that the judgment of the trial court should be reversed, and judgment here rendered, for ap-, pella-nt, and it has been so ordered.-

Reversed and rendered.
      <gz^For o tiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. JOHN MUENNINK & SON.
    (No. 5865.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.)
    1. Appeal and Error &wkey;>1012(l) — Review— Finding Against Evidence.
    Finding manifestly against the great weight and preponderance of evidence requires reversal on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-8992.]
    2. Carriers <&wkey;134r-lNJURY to Shipment-Condition When Received by Carrier-Evidence.
    Evidence in action against carrier for injury to shipment of cotton held not to show it was in good condition when received by carrier for transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 5S8-592, 607.]
    3. Carriers <&wkey;132 — Injury to Shipment-Negligence — Evidence.
    Presumption of negligence of carrier from goods being received from it in damaged condition is no evidence thereof; the evidence not showing that they were in good condition when received by it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 57S-5S2, 605.]
    Appeal from Medina County Court; R. J. Noonan, Judge.
    Action by John Muennink & Son, partners, against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    De Montel & Fly, of Hondo, and Baker, Botts, Parker & Garwood, of Houston, for appellant. V. H. Blocker, of Hondo, for ap-pellees.
   SWEARINGEN, J.

This is a suit by John and F. D. Muennink, appellees, against the Galveston, Harrisburg & San Antonio Railway Company, appellant, to recover damages to 33 bales of cotton shipped August 9th from Hondo, Tex., to Houston, Tex. It was alleged that the cotton was delivered to the railroad company in good condition, and delivered at Houston by the railroad company in its damaged condition, the allegation being that the fact was that the cotton was damaged while in the possession of the railroad company, and the presumption being that its damage was caused by the negligence of the railroad company. The evidence was submitted to a jury, which found for appellees. Judgment was rendered in favor of appellees against appellant for $89.24.

The respective pleadings presented and denied the cause of action above indicated. The evidence showed the shipment and the damaged condition of the cotton when it was sampled and examined at Houston, Tex., for the consignees after it had been delivered by the railroad company. The evidence does not show any negligence of the railroad company ; the legal presumption of negligence of carrier of commodities alone being relied upon by appellees. The evidence that the cotton was delivered to the railroad company at Hondo in good condition fails to satisfactorily establish that fact. The finding upon this issue by the jury is manifestly against the great weight and preponderance of the evidence, which requires this court to reverse and remand the 'case. McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278-282; Zapp v. Michaelis, 58 Tex. 275; Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Railway v. Levine, 87 Tex. 440, 29 S. W. 466; Best v. Kirkendall, 107 S. W. 933.

The undisputed condition of the 33 bales of cotton when received toy the railroad August 9, 1915, shown by the undisputed evidence is that the cotton was raised in 1914; that 23 bales ¡of the cotton had been under shelter only part of the period from the summer of 1914 until August 9, 1915; that 10 bales had been under shelter, but one corner of one bale next a door was damaged. When the cotton was delivered to the railroad a bill of lading was made out and delivered to the appellees on which was written:

“21 B. C. ends open, sample holes open, 4 B. C. Bag’n rotten and cotton slightly damaged on ends.”

The undisputed evidence further shows that the nature of the damage was “country damage” which had happened long before shipping. How long it would have taken for the cotton to be deteriorated by this “country damage” is not shown.

One of the appellees testified that the 33 bales were, when delivered to the railroad company, not damaged and in good condition, except the one bale above mentioned. This witness testified that 23 bales were under shelter only part of the time since it was baled during the summer of 1914. He does not deny any of the statements found in the bill of lading, nor of his partner. The partner, who was the son of the other appellee, and who handed the bales to the railroad, did not contradict any of the statements contained in the ¡bill of lading. lie testified that one of the bales was damaged on the end, and further testified that some of the bales were open on the end, but were not damaged so far as he could tell.

The sampler, Earl Bames, testified that he sampled 33 bales in the summer of 1914, while they were out on the farm of John Muennink & Son, and made a casual inspection of same again on the platform in Hondo. Some of the bales showed damage.

The evidence fails to show that the cotton was in good condition when received by the railroad company for transportation to Houston. There is no evidence of negligence of the railroad company in handling the cotton. Travis Jones v. Railroad, 193 S. W. 373; Largen v. State, 76 Tex. 323, 13 S. W. 161; American Central Ins. Co. v. Heath, 29 Tex. Civ. App. 445, 69 S. W. 235; Moore v. Sup. Assembly, 42 Tex. Civ. App. 366, 93 S. W. 1077; T. & N. O. R. R. Co. v. Drahn, 157 S. W. 282; 4 Elliott on Railroads, § 1454, note 11.

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