source: Caselaw Access Project

author: HIGHTOWER, O. X

license: Public Domain

text:
    J. KENNARD & SONS CARPET CO. v. HOUSTON HOTEL ASS’N.
    (No. 237.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 23, 1917.
    Rehearing Denied Oct. 31, 1917.)
    1. Sales <@^354(7) — Action fob Price — Answer.
    Answer, in action for price of lighting fixtures, held to sufficiently show wherein those furnished failed to comply with contract, and their smaller market value.
    2. Sales <@>=358(1) — Action fob Price — Condition of Articles — Evidence.
    Evidence, in action for price of articles, of their condition at time of trial, as not complying with contract, is admissible, in connection with evidence that they were in same condition as when received.
    3. Appeal and Error <@=>1040(14) — Harmless Error — Ruling on Pleadings.
    Overruling exception of argumentativeness and immateriality to part of answer in an action for price, that defendant was always ready to pay what it actually owed, and paid nothing because plaintiff insisted on payment of more, was not prejudicial, and so, under Court of Civil Appeals rule 62a (149 S. W. x), to be disregarded.
    4. Trial (@=^252(13) — Instructions—Assumption of Pacts.
    A requested instruction assuming authority of an architect, contrary to what the evidence shows without practical contradiction, is properly refused.
    5. Principal and Agent <@=>101(4) — Architects.
    An architect as such has no authority to purchase materials or furnishing on behalf of the owner of a building.
    6. Appeal and Error <©=>302(4) — Review— Point Not Raised Below.
    It cannot be urged on appeal that agency should have been taken as true, because alleged in the petition and not denied in the answer, plaintiff’s requested instruction for a verdict being placed on the ground that the evidence showed the agency, and its motion for new trial giving no reason why refusal of the instruction was error, except that the evidence compelled the giving of it.
    7. Sales <©=>358(1) — Action for Price — Evidence.
    The defense to action for price of lighting fixtures being that prisms thereon did not comply with contract, opinion of plaintiff’s witness that they were artistically and practically equipped with prisms is immaterial.
    8. Appeal and Error <@=>1056(2) — Harmless Error — Ruling on Evidence.
    There being no real contention, in action for price of lighting fixtures, that after they were installed prisms thereon were changed, exclusion of plaintiff’s testimony that it would be possible for them to be so misplaced or changed was harmless.
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by J. Kennard & Sons Carpet Company against the Houston Hotel Association. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Hutcheson & Bryan, of Houston, for appellant. Baker, Botts, Parker & Carwood, of Houston, for appellee.
   HIGHTOWER, O. X

The statement of this case, as made by appellant in its brief, is found to be correct, and is adopted by this court, and is substantially as follows:

“The appellant, J. Kennard & Sons Carpet Company, sued the appellee, Houston Hotel Association, owner of the Rice Hotel in the city of Houston, to recover' the sum of forty-two hundred and fifty-four ($4,254) dollars, alleged to be due appellant by appellee, for certain electric light fixtures in the way of chandeliers, brackets, etc., and for which the appellee agreed to pay the price set opposite each article, viz.:

6 ceilings. .$ 74 00
6 ceilings.. 215 00
4 ceilings. . 175 00
6 brackets.. 82 00
4 brackets
(ballroom) 82 00 4 crystal ceilings... 250 00
$ 444 00 1,290 00 700 00
492 00 $2,926 00
328 00
1,000 00
$4,254 00
“Appellee answered, claiming that it had never authorized any one to purchase for it the four crystal ceilings, amounting to $1,000, and admitting that it had ordered the other fixtures, amounting to $3,254.00, but that there was a partial failure of consideration, in that the fixtures as actually furnished were not according to the contract between the parties. The. case was tried with a jury, whose verdict consisted of answers to special issues, and judgment was rendered upon this verdict in favor of appellant for the sum of twenty-one hundred and ninety-six ($2,196) dollars, with interest, making a total of twenty-five hundred and eighty ($2,580) dollars, that being the $3,254 less $1,058, the cost of making the fixtures according to the contract.”

The item of the four crystal ceilings mentioned above, and for which appellant claimed appellee owed it $1,000, was not submitted at all for the jury’s consideration; and it might also be here stated that the first item above mentioned, consisting of six ceilings, at an aggregate value claimed to be $444, was determined and found in favor of appellant by the jury, and that item is therefore out of consideration on this appeal.

The first five assignments of error relate to the action of the trial court in refusing to sustain certain special exceptions directed by appellant against that portion of appellee’s answer, which reads as follows:

“(3) Defendant says that at the time the order was given for. the fixtures which defendant did order from plaintiff, plaintiff represented to defendant that the fixtures to be supplied by it would be made and furnished, both in design, workmanship, and material, in accordance with the plans and sketches submitted to defendant at the time the selections were made by Mr. Jones in New York. All of the ceiling fixtures were to be furnished with a series of cut glass prisms in regular order and close together, whereas in each of said fixtures furnished the prisms are scattered, ragged., and irregular, and each fixture is furnished with several hundred prisms less than is stipulated by the contract of purchase. Defendant says likewise that the bands on which the prisms are hung are irregularly placed and improperly placed, and the fixtures throughout present an irregular and improper appearance. Six of the ballroom fixtures plaintiff agreed to furnish with a central plate from which eight chains radiated to support the fixture. The fixture furnished has a central plate with only four chains radiating therefrom and the fixture has aboye five hundred (500) cut glass prisms less than called for by the contract of purchase. Defendant says that these fixtures have no market value as such, but the reasonable and fair cost in the city of Pious-ton of making alterations in the fixtures so as to make them comply with the contract would be, on the six fixtures referred to, one hundred dollars ($100) each.
“(4) Plaintiff furnished to defendant ten bracket fixtures at eighty-two dollars ($82) each. These were agreed to be furnished with nine lights each and instead they were furnished with one light with a round ball. The fixtures agreed to be furnished were to stand ten inches from the wall, and to be of the workmanship and design shown on the photographs and sketches supplied by plaintiff to defendant, instead of standing ten inches from the wall, as called for by the sketches, so as to present a neat and attractive appearance, the fixture is shorter and rests with the glass ball shoved against the side of the wall and the design of the fixture in the scroll work and supports thereof is not in accordance with the contract between plaintiff and defendant, and defendant says that there is no market value for the fixtures as furnished, but that the reasonable cost of rebuilding each of the fixtures, so as to comply with the contract, would be thirty-five dollars ($35).
“(5) There were supplied four other ceiling fixtures for the ballroom which lacked approximately five hundred cut prisms each of having thereon the number of crystals called for by the contract. There is no market value for the fixtures as furnished, but defendant says that the reasonable cost of taking down the fixtures and supplying the crystals and making it comply with the contract between plaintiff and defendant would be .twenty-seven dollars ($27) for each fixture.
“(6) There are six other ceiling fixtures listed at seventy-four ($74) dollars each in plaintiff’s petition, which lack approximately two hundred and fifty cut prisms each of having the number of prisms called for by the contract. Defendant says that these fixtures have no market value as such, but that the reasonable cost of furnishing the labor and material to make the fixtures comply with the contract of purchase would be eighteen dollars ($18) each.
“(7) Defendant says that if it is mistaken in its allegation that the fixtures supplied have or had no market value at the time they were furnished by plaintiff to defendant, then defendant says that the difference in the market value of the fixtures furnished and those contracted to be furnished is the same for each fixture as the amount alleged as the reasonable cost of labor and material to make the same a compliance with the contract of purchase!
“(8) By reason of the facts hereinabove alleged, the plaintiff has been guilty of a breach of its warranty as to the design, workmanship, and material in the fixtures furnished, by reason of which breach this defendant has been damaged in the sum of eleven hundred and sixty-six dollars ($1,166). Defendant therefore, pleads the amount of its damage herein as an offset against any recovery which plaintiff may make against this defendant herein.”

Without undertaking to quote or state in detail these special exceptions interposed by appellant, it will suffice to say that they challenge the sufficiency of the above-quoted allegations in defendant’s answer, on the ground that the same are too general, vague, and indefinite to apprise appellant of the particulars and respects in which the fixtures furnished by appellant failed to comply and be in accordance with the fixtures contracted for, and also that such allegations in the answer failed to disclose how and why there was a difference in the market value between the fixtures actually furnished by appellant and those contracted for. After a careful consideration of these exceptions, we are of the opinion that none of them are tenable, and that the assignments of error from 1 to 5, inclusive, should be overruled.

The sixth assignment of error challenges the action of the trial court in permitting appellee’s witnesses Jones, Wood, Cook, and Davis, to testify, over objection of appellant, with reference to the number of glass prism® that should have been on each of the chandeliers or fixtures, and as to the number of prisms that were, in fact, on said fixtures at the time of the trial, or at any time since such fixtures were installed, and as to the manner in which such prisms or crystals were hung, and as to the bands on said prisms, and the arrangement thereof, and also that the court erred in permitting said witnesses to testify as to the value of each of such fixtures, and the cost of changing or mailing such fixtures according to the contract, as alleged by appellee, for the reason, substantially, that such evidence was irrelevant and immaterial to any issue made by proper pleading in the case.

The only proposition that we find under this assignment is as follows:

“The chandeliers having been received and installed by appellee prior to May 1, 1913, the evidence of the witness Wood as .to the number of crystals on the chandeliers in 1915, and the evidence of the witness Cook as to the number Of prisms at the time of the trial in May, 1916, could not throw any light on the number of prisms that were on the chandeliers when they were installed in 1913, two or three years before, and was therefore irrelevant and immaterial, and would only serve to mislead the jury.”

In disposing of this assignment and proposition, we think it will suffice to say that the record in this case shows, without contradiction, that the fixtures in question were in the very same condition, as regards the number of prisms, crystals, chains, bands, and positions, as when such fixtures were first received and installed, and for that reason we hold that the evidence complained of was properly admitted, over the objection that the same was irrelevant and immaterial, and the assignment is overruled.

The seventh assignment of error challenges the action of the court in overruling appellant’s special exception, directed against subdivision 10 found in paragraph 3 of appel-lee’s answer, the ground of exception being that such answer was argumentative, irrelevant, and immaterial, and alleged no fact which constituted a defense, or that raised any issues in the case.

We have examined the portion, of the answer complained of, and without incumbering this opinion by quoting the same, or even stating in substance the matter there complained of, we hold that appellant could not have been prejudiced in the least by the action of the court in overruling this exception, even if there had been error committed by the court in its action in this respect. The allegation, in substance, was that appellee had at all times been willing and ready to pay appellant what it actually owed appellant, but that appellant declined to take from) appellee what was justly owing and due by it, but insisted upon payment of more than appellant knew it was entitled to receive, with interest, and that for such reason appel-lee had paid appellant nothing. This, we say, is in substance the matter complained of by this exception. The same is overruled. Rule 62a (149 S. W. x).

The eighth assignment challenges the action of the trial court in refusing to give to the jury appellee’s requested charge No. 1, reading as follows:

“The jury are instructed that as it appears from the evidence in this case that E. J. Russell, architect for the defendant, was authorized and empowered by the defendant to contract with plaintiff for the ballroom and parlor fixtures, which aggregated in amount the sum of $3,254, and that the matter was left by the defendant to the discretion of said Russell, and he, having made said contract, and having accepted said fixtures as being according to contract, and there being neither pleading nor proof impeaching for fraud the judgment and discretion of said Russell in accepting said fixtures, you are instructed to return a verdict for the plaintiff for the said sum of $3,254, with 6 per cent, interest per annum thereon from the l§t day of May, 1913, until this date.”

There are several propositions under this assignment, the first of which is:

“The undisputed evidence in the case showing that Mr. Russell had been given authority to purchase the ballroom and parlor fixtures, the presumption of law would be, and the facts in this case show, that he was the general agent of appellee for that purpose, and any instructions not communicated to the appellant would not limit the liability of the appellee, as principal, for the acts of its general agent, Russell.”

It will be readily seen that this requested charge assumed, unequivocally, that the said Russell, architect for appellee, was authorized and empowered by appellee to contract with appellant for the fixtures which were, in fact,, furnished and installed by appellant, and that the whole matter, in connection with such fixtures, was left entirely to the discretion of said architect, and further assumed that because said architect did finally issue his certificate to appellant, to the effect that the fixtures furnished were those called for by the contract between appellant and appellee, that appellee was legally hound to pay to appellant the amount claimed to be the value thereof.

If the facts in this record showed, without dispute, that the said Russell was authorized to purchase for appellee the fixtures which were, in fact, furnished by appellant, then, of course, the court should have given this requested charge, and there would be no doubt about the correctness of the proposition of law following this assignment.

We have very carefully examined the entire record, and the evidence of every witness bearing upon this assignment, and instead of finding that the uncontradicted evidence shows that the said Russell had authority or was authorized to purchase for appellee the fixtures which were, in fact, furnished and installed by appellant, we find just the contrary, i. e., we find that the record discloses, without substantial contradiction, that the architect, Russell, was not, in fact, instructed, nor was he authorized, to purchase for appellee any fixtures which were not in accordance with and called for by the contract between appellee and appellant. We could not undertake to state in detail the evidence bearing on this point found in this voluminous record, but will state our conclusions of fact, which we think are supported by evidence, practically undisputed, in the record.

The appellant, J‘. Kennard & Sons Oar-pet Company, entered into negotiations with appellee, Houston Hotel Association, acting through its president, Jesse H. Jones, in December, 1912, which finally resulted in ap-pellee agreeing to purchase from appellant certain electric light fixtures, to be installed by appellant in appellee’s hotel then nearing completion in the city of Houston, Tex. Such fixtures were not carried in stock by appellant at the time the contract was entered into, but it was the intention and purpose of appellant to purchase such, fixtures from a concern in New York, who was a manufacturer of such fixtures, which concern was L. Plaut & Co. The contract for the purchase of the fixtures which ap-pellee ordered was made between Jesse H. Jones, appellee’s president, and one Herman Plaut, a member of the concern of L. Plaut & Go., the said Herman Plaut being the agent of and acting for appellant in entering into and making such contract with ap-pellee’s president, Jones. This contract between appellant, acting through Herman Plaut, and appellee, acting through its president, Jones, was entered into in the city of New York, and finally consummated, as this record shows, when carefully analyzed, on the 4th day of January, 1913. It was a verbal contract, it seems, but the character of the fixtures to be furnished was fully delineated and shown by drawings, maps, and sketches, which were exhibited to appellee’s president, Jones, by the said Herman Plaut, as agent for appellant. These drawings and sketches are in the record hefore us, and they were introduced, of course, in evidence upon the trial below.

At the time this contract for the purchase of these fixtures was entered into, the firm of Mlauran, Russell & Crowell, domiciled in the city of St. Louis, Mo., were the architects of appellee, in connection with appel-lee’s hotel then nearing completion at Houston, Tex., and Mr. B. J. Russell of that firm had personal supervision of the matters pertaining to the contract between his firm and appellee. Just before the contract for the purchase of these fixtures was entered into between the said Herman Plaut and the said Jesse H. Jones, each acting as aforesaid, Mr. Jones, in company with Mr. Russell, in the city of New York, was looking over fixtures of the character in question, with a view to making a selection for ap-pellee’s hotel in Houston, and it appears from the record that they, together, discussed several designs of different manufacturers, including as many as three, at least, different manufacturers, and that before any designs were fully agreed upon between Mr. Jones and Mr. Russell, Mr. Russell left New York, and went back to St. Louis, knowing at the time he left New York that Mr. Jones had not then determined upon any certain designs or scheme of fixtures, but that he (Jones) was considering designs furnished and exhibited by three diffei’ent concerns, including those of appellant, acting through its agent, Herman Plaut, and all of the parties, that is Mir. Jones, Herman Plaut, and Mr. Russell, knew that appellee wanted to procure fixtures at the earliest possible moment, and that no time could be lost in securing them. Within the next few days after Mr. Russell left New York, several telegrams passed between him and Mr. Jones, who was still in New York, regarding the fixtures to be purchased, one of which telegrams, and the only one which we regard of sufficient materiality to set out here, was as follows:

“New York, N. Y., Jan. 3, ’13.
“E. J. Russell, Chemical Rldg., St. Louis, Mo.: Do I understand that building is being wired so we can use current from city company and later change to our own plant? If so, I would prefer not putting in plant at this time as I am already too near broke, but if necessary could strain a point. Our original alternate for plant was twenty thousand two hundred fifty. See if we cannot get it now at same figure. Am ready to buy laundry, but think we had better locate it in annex basement, and will have Meador & Matthews make contract direct if that sounds feasible to you. I like Chassaing’s ballroom fixtures better than Plaut’s, but time is an object and suppose we will have to trade either with Plaut or Tiffany, unless Chassaing would be willing to install temporary fixtures satisfactory in event he was unable to get others ready. I am not especially favorable to the large amount of composition apparent in Plaut fixtures, but it may work out all right. Will leave it with you and thank you to close it. I do not think it possible for us to open before March 1st. Jesse H. Jones.”

As stated above, the foregoing telegram shows that, at the time same was sent by Jones to Russell, Jones was still undecided as to whose designs he would accept, that is, those of Tiffany, those of Chassaing, or those of Plaut, acting for appellant, and it is manifest from such telegram, wheu construed in the light of all the other evidence bearing upon that point, and which is uncontradicted, as shown by the record, that Mr. Jones simply intended that Mr. Russell should exercise his judgment in purchasing such fixtures, only as between those offered by the three concerns named, the sketches and plans of which were then known, both to Mr. Jones and to Mr. Russell, but the evidence in this record shows conclusively, and without contradiction, that Mr. Russell was not instructed, or authorized, or expected, to make purchases of any fixtures other than those, the sketches of which had been furnished by the above-mentioned three concerns handling such fixtures. Indeed, it is not seriously contended by appellant, as we understand its contention here, that Mr. Russell was authorized under this contract with the appellee, to purchase, for the use of appellee, electric fixtures such as in his judgment might be suitable for appel-lee’s building, but the uncontradicted evidence in the record shows that Mr. Jones, appellee’s president, in his contract with Mauran, Russell & Crowell, expressly reserved the right to pass upon all material and work furnished and used in appellee’s building, and that no woi’k or material done upon or placed in same could be accepted by said architects, without being first submitted to him, Jones, and he consenting thereto. Again we say at this point that we could not afford to set out this testimony, and keep within reasonable bounds in this opinion. Otherwise; we would be glad to set out this testimony bearing upon this point.

Now, after this telegram of January 3, 1913, above quoted, was sent by Mr. Jones to Mr. Russell, on the very next day, January 4, 1913, Mr. Jones, seemingly anxious on account of the short time which he felt he had in which to procure the desired fixtures, authorized Mr. Herman Plaut, as the agent of appellant, to proceed with the manufacture of the fixtures shown by the designs and sketches furnished by Herman Plaut to Mr. Jones, as hereinbefore stated, and at the same time again apprised Mr. Plaut, acting as the agent of appellant, of the necessity of quick action in getting said fixtures completed.

At the time this contract between Mr. Jones and Herman Plaut, acting for their respective principals, was finally consummated, as just above stated, Mr. Russell was not present, and had nothing to do, at that time, with the consummation of this contract, and Mr. Plaut, as the agent of appellant, knew and understood, at that time, and from the beginning'of. negotiations between him and Mr. Jones, that Mr. Jones, as appellee’s president, was personally acting for appellee in the selection of the electric fixtures, and everything in the record goes to show that Mr. Plaut well knew that it was Mr. Jones and not Mr. Russell who was to ultimately determine and decide upon the fixtures that should be furnished. Now it is true, that at the time Mr. Jones closed this contract .with Mr. Plaut, as agent for appellant, he stated to Mr. Plaut, in substance, that his, Plaut’s firm, would receive a formal order from Kennard & Sons Carpet Company, but at the same time advised him not to wait for such formal order, but to proceed at once with the manufacture, etc., of such fixtures as were agreed upon and shown by the sketches and designs furnished by Mr. Plaut, as appellant’s agent. Shortly after this, and prior to the 9th of January, Mr. Jones wired Mr. Russell, in substance, that he (Jones) had accepted the Plaut fixtures, and furnished by mail to Mr. Russell the sketches and designs or photographs of said fixtures, as agreed upon, which designs or photographs were expected to be furnished by Mr. Russell to J. Kennard & Sons Carpet Company, at St. Louis, and thereafter Mr. Russell wired Mr. Jones, acknowledging the receipt of such photographs or designs, and stating that he had taken the matter up with J. Kennard & Sons Company, with instructions to proceed to furnish same, etc.

The evidence in this record is positive and uncontradicted to the effect that the firm of Mauran, Russell & Crowell, nor any member thereof, .was authorized, at any time, to accept or purchase from appellant any fixtures that were strictly not in accordance with the contract between appellant and appellee, but appellant takes the position that it knew nothing about the understanding between ap-pellee’s president, Jones, and said architects, that he (Jones) was to have the right to pass upon all work and material used in said hotel building, and that the facts and circumstances in evidence were sufficient to show that said firm of architects, and especially the said Russell, sustained the relationship of general ageht to appellee for the purpose of purchasing the materials in question, and that having furnished said fixtures, if there were any of them that were not strictly in accordance with the contract between appellant and appellee, as shown by the plans and sketches and drawings, that still, the same having been agreed upon by the said Russell, appel-lee will be bound thereby, upon the theory, presumably, that what the architect, Russell, did in that connection, was at least within the apparent scope of his authority. In answer to this contention, we must say that the record discloses, without contradiction, that appellee never at any time did anything or said anything that could lead appellant reasonably to the conclusion that said architects or any of them were authorized to make any purchases of any such fixtures, other than were described and called for in the contract between appellee and appellant, acting through its agent, Herman Plaut. Appellant strenuously insists, in its brief, that the telegram of January 3, 1913, above quoted, was, of itself, sufficient to show that Mr. Russell was authorized to use his judgment generally in selecting such fixtures for appellee, but, as hereinbefore stated, before any action was taken by Mr. Russell, appellant’s agent, Herman Plaut, had closed the contract with ap-pellee’s president, and the fixtures covered thereby were exhibited and clearly shown by the sketches and designs furnished by said agent, Plaut, and everything in the record' goes to show that- there was nothing from which appellant might reasonably conclude or assume that there was any authority on the part of Mr. Russell to purchase any fixture whatever not in accordance with the contract so agreed upon.

The record in this case, when clearly understood, discloses, without contradiction, that the firm of Mauran, Russell & Crowell were acting for appellee in their capacities as architects only, and not as general agents for any purpose, and it seems to be .well settled that an architect, as such, has no authority to make purchases of any character of material or furnishings, on behalf of the owner of a building, and therefore an attempt on the part of an architect to bind the owner of a building by purchasing material or fixtures for such a building will not, of itself, have the effect to bind such owner. 2 Am, & Eng. Ency. of Law (2d Ed.) 820; Fitzgerald v. Moran, 141 N. Y. 419, 36 N. E. 508; Dodge v. McDonnell, 14 Wis. 553 ; Woodruff v. Ry. Co., 108 N. Y. 39, 14 N. E. 832; Leverone v. Arando, 179 Mass. 439, 61 N. E. 45; Mechem on Agency (2d Ed.) vol. 1, par. 992.

In conclusion on this point, we say that the evidence in this record shows, without material contradiction, that the only authority which was given Mr. Russell to purchase ballroom and parlor fixtures for appellee’s hotel was only to the extent of purchasing such fixtures as had been’ exhibited by appellant, through its agent, to appellee’s president, and the record further shows, without contradiction, that the relation sustained by Mr. Russell to appellee was not that of general agent, but the very most that could be said in favor of appellant’s contention on that point would be that he was only a special agent of appel-lee, and neither by his acts in the latter capacity, nor in that of architect, could he bind appellee by purchasing or accepting fixtures other than those that he was instructed to purchase, as coming within the contract between appellant and appellee.

There is another proposition urged by appellant under this assignment, as follows:

“Appellant having specially alleged that Russell was the duly authorized agent of appellee, and this not having been denied under oath, the agency should be taken as true.”

Objection is interposed by appellee to the consideration of this proposition, because the proposition that appellee failed to deny under oath the authority of Russell to bind it by his written certificate that the fixtures purchased were in conformity with the terms of the contract of purchase was not raised in t'iie motion for a new trial, nor elsewliere assigned as error in the trial court.

We have carefully examined the record in connection with this objection, and think that the objection is well taken, and therefore decline to consider this proposition. It is true that the requested instruction sought to be given to the jury was seasonably requested, and its refusal by the court was timely excepted to by appellant, but this bill of exception fails to disclose that any reason for the giving of the charge was called to the attention of the court, other than that stated in the charge itself, and the reason as there stated was that the evidence in the case disclosed that Russell was authorized to purchase the fixtures, and that he did, in fact, purchase them, and accepted them, and that appellee was bound by the acts of Russell in so doing, there being no pleading or proof of fraud actuating Russell in so doing. Thus it will be readily seen that there was nothing in this requested charge that would probably call to the trial court’s attention the fact that appellant’s allegation that Russell was the duly authorized agent of appellee to purchase such fixtures, and that, since such allegation of agency had not been denied under oath by appellee, such allegation should be taken as true. On the contrary, the only reason for asking the charge, as expressly appears therefrom, was upon the ground that the evidence conclusively showed such authority in Russell, and also that there was no pleading or proof of fraud on the part of Russell. Thereafter, in appellant’s motion for new trial, this action of the court was assigned as an error committed by the court, but in this assignment there was no reason stated why the action of the court in this regard constituted error, other than the reason stated in the charge itself, that the evidence compelled the giving of the charge.

There are several other grounds of objection urged to the consideration of this proposition, but having determined that this one should be sustained, we have not considered such other objections. See district and county court rule 67 (142 S. W. xxii). This rule provides:

“Each ground of a motion for a new trial, or in arrest of judgment, shall briefly refer to that portion of the ruling of the court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings, which are to be complained of, in such a way that the point of objection can be clearly identified and understood by the court.”

Rule 24 (142 S. W. xii) for the Courts of Civil Appeals provides:

“The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in the motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error, as mentioned in rule 23 [142 S. W. xii].”

Rule 25 (142 S. W. xii) provides:

“To be a distinct specification of error, it must point out that part of the proceedings contained in the record in which the error is complained of in a particular manner, so as to-identify it, whether it be the portion of the charge given or refused, and the particular matter in which the judgment is erroneous or irregular, with such reasonable certainty as may be practicable in a succinct and clear statement, considering the matter referred to, and must refer to that portion of 'the motion for a new trial in which the error is complained of.”

gee, also, Traction Co. v. Emerson, 152 S. W. 468; Peacock v. Coltrame, 156 S. W. 1088.

Another proposition urged by appellant under this assignment is to the effect that ap-pellee, having received, retained, and used the fixtures, and there being no express warranty surviving any failure of the fixtures to be according to contract, the appellee . was bound to pay the full contract price.

Appellee also objects to the consideration of this proposition on the same ground as; that interposed in connection with the consideration of the preceding proposition, and after examining the record in connection with, this proposition and objection, we doubt whether we should consider it; but not being sure that we would be justified in disregarding this proposition, we have considered same.

As shown by the charge requested, the same assumed that appellee did, in fact, accept and retain the fixtures delivered by appellant, as a full compliance, and as being in accordance with the contract, while, as a matter of fact, in our opinion, the record discloses just the contrary. We think thttt when all the evidence in this record is carefully analyzed, it must be concluded that appellee never did accept all the fixtures furnished by appellant as a compliance with the contract of purchase, but that appellee expressly declined so to do at the time his attention was first called to the fixtures, and we think that it is shown, beyond dispute, in this record, that appellant was fully apprised of the fact that appellee had not accepted and would not accept such fixtures as a compliance with the contract, many months prior to the claimed acceptance of same by the architect, Russell, and the issuance of his certificate to that, effect. Indeed, this record discloses that appellant was notified promptly of appellee’s refusal to accept these fixtures as a compliance in full with the contract, and appellant undertook to remedy some of the defects complained of, and, in fact, the record in this case discloses that there was not and is not really a serious contention that the fixtures furnished by appellant complied in all respects with the contract. Eor this reason, the trial court would not have been justified, but would have been clearly in error, had it. given this charge. The assignment is therefore overruled.

The ninth assignment complains of the action of the trial court in refusing the following instruction requested by appellant:

“The jury is instructed that the evidence in this case shows that E. J. Russell was authorized by the defendant to contract for the fixtures included in the general order, aggregating $3,-254, which included the brackets, and that he had the authority to change said brackets from a candle effect to a beaded ball effect, and the defendant, having received said brackets and . used the same, and its president, Jesse H. Jones, having impliedly accepted the same as being satisfactory, the jury will find a verdict in favor of the plaintiff as to said brackets.”

The proposition under this assignment is as follows:

“Appellee, having expressly authorized E. J. Russell to purchase the electric light fixtures for the ballroom, this gave him the power, so far as appellant was concerned, to make the change in the brackets from a candle effect to a beaded ball effect, it not being shown that the appellant knew of any restriction upon Mr. Russell’s authority, and the facts not showing any such restriction, the appellee was bound by Mr. Russell’s acts in that regard.”

It will be readily seen that the charge requested, the refusal of which is here complained of, assumes that the architect, Russell, was fully authorized to act for appellee in selecting and purchasing the fixtures mentioned, and to make the change as to the bracket fixtures, causing them to differ materially from the fixtures originally ordered by appellee, and, consequently, that appellee was bound by Russell’s acts in all respects.

We again repeat that the evidence in the record, when fairly and properly analyzed, fails to show that Mr. Russell had any such authority as this charge assumes, but, on the contrary, we think the evidence clearly shows that Mr. Russell had no such authority, and that appellant would not be justified in concluding that any such broad authority was ■conferred upon Mr. Russell. We think the ■court, in view of the state of the evidence on this point, was clearly correct in refusing this instruction, and the assignment of error is overruled.

Appellant’s tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error relate to the action of the court in refusing to give to the jury certain special instructions, all of which we have carefully considered, and have concluded that the court was correct in refusing them all, for the reason that there was no basis in the evidence for such charges, and suqh assignments are therefore overruled.

The sixteenth assignment of error complains of the action of the court in refusing to permit appellant’s witness, Plaut, whose deposition was taken, to testify in substance that in his (witness’) opinion, at the time the fixtures left New York they were artistically and practically equipped with prisms.

As heretofore stated, the fixtures desired by appellee, and which are in question here, were to be manufactured and furnished according to certain sketches and drawings, which were exhibited to appellee’s president in New York by appellant’s agent, Herman Plaut, and these sketches and drawings clearly showed the character of these fixtures in every particular, the manner in which prisms and crystals were to be placed thereon, and according to such sketches and plans, it would appear that these prisms and crystals were to be so adjusted and arranged and regularly distributed as to all but touch one another, leaving hardly any visible space between them, presenting a symmetrical and uniform whole, whereas, it was shown without dispute, in the evidence, that these prisms and crystals, bands, etc., were not placed on said fixtures in the manner and form and numbers as shown by these maps and sketches, and therefore there was a failure on the part of appellant to comply with said contract in the furnishing of said fixtures, and the opinion of the witness Plaut as was sought to be introduced, to the effect that these fixtures, when they left New York, were artistically and practically equipped with prisms, was entirely immaterial, in the view we take of it. It might be true that at the time such fixtures left New York Mr. Plaut thought that they looked very appropriate and were, in fact, just what appellee needed, and, as stated, that they were .practically and artistically equipped with prisms, etc.; yet appellee was not contracting for fixtures that appeared to Mr. Plaut or appellant to be the appropriate and most suitable designs fox- appellee’s hotel in Houston, but contracted with appellant for fixtures that wei-e clearly and carefully exhibited by designs and plans exhibited to appellee’s agent at the time of the making of the contract of purchase. If such fixtures had been furnished as called for by these plans and sketches, then appellee would have been bound to pay for same, whether such fixtures were, in the opinion of appellant or its agent appropriate for the purposes for which they were intended, or not; but as they did not accord with such plans and designs, and therefore were not according to contract between the parties, appellee was not bound to accept or pay for same, even though, in the opinion of appellant or its agent, they were appropriate and practical for the purposes intended. The assignment of error is overruled.

The seventeenth assignment complains of the action of the court in refusing to admit certain testimony tendered in a deposition of O. J. Mueller. The testimony tendered was as follows:

“In putting- on these prisms, they hang over a band, and the person that is washing these can slip them and have them close together, or they can have them an inch apart. Furthermore, they can misplace the prisms by putting more on one band than on another, making these fixtures look irregulai-.”

We think there was no material error, if error at all, in the action of the court in this regard, for the reason that there is really no contention, as shown by the record, that any of the prisms or other parts of the fixtures lad been misplaced or changed since they were installed in the hotel at Houston, and the mere fact, as sought to be shown by the witness, that it would be possible to so misplace or change such fixtures, would have little relevancy to any real issue in the case, and we feel sure that if the action of the court in refusing this testimony was error, it would not be of sufficient magnitude to warrant a reversal of the judgment.

The eighteenth assignment of error challenges the verdict of the jury as being excessive in the amount of set-off allowed ap-pellee by the verdict.

The amount of this set-off was $1,058, and, without discussing in detail the testimony bearing upon this point, we have concluded that the evidence was sufficient to warrant the verdict of the jury, in allowing this amount as a set-off to appellant’s claim, and this assignment is therefore overruled.

What we have said disposes of all assignments of error found in the record, and it follows therefrom that in the opinion of this court the judgment of the trial court should be affirmed, and it is so ordered.
      £=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TADBOT, J.

text:
    TEXAS & P. RY. CO. v. MAX HAHN PACKING CO. et al.
    (No. 7798.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1917.)
    1. Evidence <@=»471(2) — Opinions — Mixed Questions oe Law and Pact.
    A question, what would have been the cash market value of cattle if carried “with reasonable dispatch and without rough handling,” answered, “6.15 per hundredweight,” was not erroneous as a mixed question of law and fact, where the question of reasonable time was not in issue, and just an opinion of an expert cattleman on the matter of damages was wanted.
    2. Appeal and Error <§=»1052(5) — Harmless Error — Evidence.
    Where great preponderance of evidence showed that, through carrier’s neglect, cattle were injured, and in the sum awarded, it was harmless to admit an answer to a mixed question of law and fact regarding reasonable time of shipment and value, time not being in issue.
    3. Appeal and Error! <@^1050(1) — Harmless Error — Admission oe Similar Immaterial Evidence Without Objection.
    In an action for damages to cattle while in transit, defendant cannot assign error in the admission of evidence as to what plaintiff paid for the cattle, where substantially the same evidence was admitted without objection.
    Appeal from District Court, Dallas County; Kenneth Poree, Judge.
    Suit by the Max Hahn Packing Company against the Texas & Pacific Railway Company. On prayer of defendant, the Pt. Worth Stock Yards Company, Pt. Worth Belt Railway Company, and the Missouri, Kansas & Texas Railway Company were made parties defendant. Judgment against the original defendant alone, and it appeals.
    Affirmed.
    Plippen, Gresham & Preeman and Walter G. Miller, all of Dallas, for appellant. Ethe-ridge, McCormick & Bromberg, of Dallas, and W. L. Evans and ’Clapps, Cantey, Hanger & Short, all of Pt. Worth, for appellees.
   TADBOT, J.

Max Hahn Packing Company sued the appellant, Texas & Pacific Railway Company, and the Missouri, Kansas & Texas Railway Company of Texas, to recover damages alleged to have been sustained by it as the result of injuries inflicted upon certain cattle shipped by appellee over appellant’s line of railway from Pt. Worth, Tex., to Dallas, Tex., and thence over the line of the Missouri, Kansas & Texas Railway Company of Texas from the point of its intersection with appellant’s road at Dallas to the yards and packing house belonging .to appellee situated in the northern part of the said city of Dallas. It is alleged that the cattle were transported in two separate shipments, one made June 1, 1914, consisting of 29 head of .cattle, and the other July 8, 1914, consisting of 22 head of cattle; that the defendants in the transportation of each of said shipments of cattle handled them s'o negligently, roughly, and unskillfully that when they arrived at destination they were in a wounded, bruised, and injured condition, and so reduced in weight and depreciated in quality and value that plaintiff suffered loss thereby in the aggregate sum of $1,149.39.

The defendant Texas & Pacific Railway Company in its amended original answer filed August 3, 1915, denied each and all of the allegations of negligence in plaintiff’s petition, and answered, further, that the cattle were delivered to it, the Texas & Pacific Railway 'Company, by the Pt. Worth Belt Railway Company, who received them in turn from the Pt. Worth Stock Yards Company, at Pt. Worth; and further alleged that, prior to the cattle being received by the Pt. Worth Belt Railway Company, they had been hauled a great distance over various railway lines into the city of Pt. Worth; and asked that the Pt. Worth Stock Yards Company and the Pt. Worth Belt Railway Company be made parties to this suit, and that, if any judgment was rendered against it, the Texas & Pacific Railway Company in turn have judgment over and against the said Pt. Worth Belt Railway Company and the Ft. Worth Stock Yards Company. The Pt. Worth Belt Railway Company and the Pt. Worth Stock Yards 'Company, answering herein, denied each and every allegation of negligence against them. The defendant Texas' & Pacific Railway Company further alleged that it delivered each of said shipments to the Missouri, Kansas & Texas Railway Company of Texas in the same condition in which they were received by the defendant Texas & Pacific Railway Company.

The case was tried in the district court of Dallas county on April 29, 1916, and -the trial resulted in an instructed verdict for the Ft. Worth Belt Railway Company and the Ft. AVorth Stock Yards Company, and in a verdict, upon the submission of the case as to the plaintiff and the defendants Texas & Pacific Railway Company and Missouri, Kansas & Texas Railway Company, in favor of the last-named company, and in favor of the plaintiff, Max Hahn Packing Company, 'against the Texas & Pacific Railway Company for the sum of $670.40, with interest. From the judgment against it the Texas & Pacific Railway Company appealed.

The assignments of error relate solely to the admission of testimony. Over the objection of the appellant, the witness Max 1-Iahn was permitted to answer the following question: “Please tell the jury what the actual cash market value of the first shipment of cattle of 29 head that went out on June 1st would have been per hundred pounds had the same been carried with reasonable dispatch and without any rough handling? The answer of the witness was, “$6.15 per hundredweight.” The substance of the objection to this testimony is that the question called for and the answer gave the opinion of the witness on a mixed question of law and fact. The principal cases relied upon by appellant in support of its contention -that the admission of the testimony was error are Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808, and Railway Co. v. McIntyre & Hampton, 152 S. W. 1103. The first-mentioned case is not, in our opinion, applicable, and the second was decided by a divided court, and, if not distinguishable from the case at bar, we are not inclined to follow it. Obviously, the question in the Roberts Case sought to elicit the opinion of the witness in a matter involving his conclusion upon a mixed question of law and fact, namely, what would be a reasonable time for the transportation of cattle by rail, between certain] points, when they are transported with ordinary care and diligence, which, .under uniform decisions, was' improper. Such was not the purpose and effect, we think, of the question here under consideration. No issue as to what would be a reasonable time for the transportation of appellee’s cattle from Ft. AVorth to Dallas was submitted to the jury, and hence they were not called upon to decide that question. But the issue of whether the appellant was guilty of negligence in rough handling of appellee’s cattle was clearly and distinctly submitted, and the evidence is ample to sustain the jury’s finding upon that issue. The evidence is also ample to show that the witness Max Hahn and other witnesses who testified upon the subject fully qualified themselves to speak as to the question of the value of the cattle at Ft. AVorth and Dallas, and it is not claimed that they were not. The question objected to by them was, as similarly said by Chief Justice Con-nor in his dissenting opinion in Railway Co. v. McIntyre & Hampton, supra, a hypothetical one, which by no means seeks to elicit the answer of the witness upon the conclusions embodied in the question. The fact really sought by the question was the opinion of the witness of the value of the cattle involved in the shipment at the point of their destination in the contingency of their transportation without unnecessary injury. The case of Railway Co. v. West, 149 S. W. 206, we think, is applicable. In that case Mr. Justice Rice, speaking for the court upon substantially the same question before us, said:

“It seems to us that an experienced cattleman, who had frequently shipped cattle and who knew the condition of the cattle when shipped, and who was shown to have known their market value at destination, ought to be allowed to give his opinion as to what such market value would be, provided they had been handled with reasonable care or in the ordinary way, and that to allow such an answer would not infringe the rule laid down” in the case of Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808.

The same we think may be said in the case before us, and the appellant’s first assignment of error raising the question discussed will be overruled.

At all events, the great preponderance-of the evidence, if not the .undisputed evidence, shows that the cattle were bruised and injured, evidently as the result of rough handling in transportation, to appellee’s damage in the sum awarded him, and it is not at all probable that the jury was influenced to the prejudice of appellant by the testimony in question.

The second assignment of error presents the same question as the first, and is disposed of against appellant by what has already been said.

The third and fourth .assignments of error are to the effect that the trial court erred in allowing the witnesses Max Hahn and Sam Honeycutt to testify as to the price paid by appellee for the cattle. The objection urged to the admission of -this testimony was that it was immaterial and irrelevant. If it should be conceded that this testimony, strictly speaking, was inadmissible, the error was harmless for the reason that substantially the same testimony or testimony of like effect was admitted without objection. A careful examination of the record has convinced us that -the matters complained of by appellant are insufficient to require a reversal of the district court’s judgment, and it is therefore affirmed.

Affirmed.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    BANKS v. STATE.
    (No. 4603.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Appeal from District Court, Collin County; C. T. Freeman, Judge. Maude Banks was convicted of crime, and she appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a verdict and judgment condemning appellant to confinement in the penitentiary for a period of two years for the offense of selling intoxicating liquors in territory in which such sale is prohibited. _ The prosecution is founded upon a valid indictment, and the record contains neither bills of exception nor statement of facts. There being no error disclosed, the judgment is affirmed.


author: PRENDERGAST, J.

text:
    Ex parte FINKS.
    (No. 4774.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Appeal from District Court, Falls County; W. A. Patrick, Judge. Habeas corpus by Frank Finks to be admitted to bail. From the judgment and order refusing bail, Finks appeals.
    Reversed, and bail granted.
    Nat Llewellyn, of Marlin, Joe W. Taylor, of Waco, and W. W. Hair, of Temple, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from the judgment and order of the district judge refusing bail on a habeas corpus hearing. We have carefully read the testimony. Under the law, there is no question but that appellant was entitled to bail. The judgment of the district judge denying bail is reversed, and the applicant is admitted to bail in the sum of $10,000. Upon the execution by him, with proper sureties, of a proper bail bond, the sheriff is directed to discharge him thereunder. Reversed, and bail granted.


text:
    GONZALES v. STATE.
    (No. 4584.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Felix Gonzales was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

From' a conviction of murder this appeal is prosecuted, but without a statement of facts or bill of exceptions. Without these there is nothing presented which can be reviewed. The judgment is therefore affirmed.


author: DAVIDSON, P. J.

text:
    GOSS v. STATE.
    (No. 4580.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. John Goss was convicted of burglary, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The trial resulted in a conviction for burglary, with two years’ punishment awarded. The record contains neither a bill of exceptions nor statement of facts. Without these the matters set up in the amended motion for new trial cannot be revised, there being no question raised for discussion. As the record is presented, the judgment is affirmed.


text:
    GUTERREZ v. STATE.
    (No. 4570.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from District Court, Bee County; F. G. Chambliss, Judge. Francisco Guterrez was convicted of rape, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for rape on a girl under 15 years of age, but without a statement of facts or bill of exceptions, and no question raised which can be considered in the absence of these. The judgment is therefore affirmed.


text:
    JONES v. STATE.
    (No. 4585.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. Challie Jones was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of theft, and punishment fixed at two years’ confinement in the penitentiary. The indictment appears regular, and there are no questions raised for review. There are neither bills of exception nor statement of facts. The judgment of the lower court is affirmed.


text:
    Ex parte MARLIN.
    (No. 4772.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.)
    Appeal from District Court, Falls County; W. A. Patrick, Judge. Application for habeas corpus on behalf of Eugene Marlin. From a judgment denying bail, relator appeals.
    Judgment reversed, and bail fixed.
    Nat Llewellyn, of Marlin, Joe W. Taylor, of Waco, and W. W. Hair, of Temple, for appellant. E. B. Hendricks. Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Relator was charged with' murder. Upon the hearing of his application for writ of habeas corpus, he was denied bail. We have read the record, and without discussing the facts, or giving the reasons for our conclusion, we are of opinion relator is entitled to bail. The judgment is therefore reversed, and hail is fixed in the sum of $10,000, the bond to be taken and approved by the sheriff of Falls county in that amount, upon the execution of which bond in the terms of the law relator will be discharged from custody.


text:
    Ex parte MITCHELL.
    (No. 4661.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from District Court, Knox County; J. H. Milam, Judge. Habeas corpus proceedings by Will Mitchell, seeking bail. From an order-denying bail, relator appeals.
    Reversed, and appellant admitted to bail.
    See, also, 196 S. W. 540.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from by the district judge, on a habeas corpus trial. We have read and considered the statement of facts. Our conclusion is that the district judge erred in refusing bail. We think, under the law and the facts, appellant was clearly entitled to bail. The judgment denying hail will therefore be reversed, and upon his executing in accordance with the law the proper bail bond in the sum of $7,500 he will be discharged. Reversed, and appellant admitted to hail.


text:
    ROSEMOND v. STATE.
    (No. 4583.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. E. T. Rose-mond was convicted of burglary, and he appeals.
    Affirmed.
    B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a judgment condemning him to confinement in the penitentiary for a term of five years for the offense of burglary of a private house. The indictment appears sufficient, and there are neither bills of exception nor statement of facts in the record, and no questions presented for review. The judgment is affirmed.


text:
    ALLEN v. STATE.
    (No. 4759.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    Appeal from Lamar -County Court; Tom L. Beauchamp, Judge.
    O. L. Allen was convicted, and appeals.
    Affirmed.
    E. B. Hendricks, Asst Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $100 and 60 days’ imprisonment in the county jail.

The record is before us'without'statement of facts or bills of exception. There is nothing in the motion for new trial that can be reviewed in the absence of the statement of facts.

The judgment will be affirmed.


text:
    JONES v. STATE.
    (No. 4727.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    James Jones was convicted of pursuing the business of selling intoxicating liquors, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is charged by sufficient indictment regularly presented with pursuing the business of selling intoxicating liquors where such sale is prohibited by law, and on conviction his punishment was assessed at confinement in the state penitentiary for two years, from which sentence this appeal is prosecuted; and the record comes without bills of exception or statement of facts.

No error having been pointed out, the judgment of the lower court is affirmed.


author: PHILLIPS, C. J.

text:
    BAKER v. COMAN et al.
    (No. 2896.)
    (Supreme Court of Texas.
    Nov. 7, 1917.)
    Constitutional Law <®=s>43(2) — Invalid Portions on? Statutes — Right to Question.
    One seeking to enjoin the maintenance of a bawdy house as authorized by Rev. St. 1911, arts. 4689, 4690, is not barred from questioning the validity of a proviso contained therein allowing the creation of a segregated _ district by a city, where his right to injunction is granted by the parts of the articles not included in the illegal proviso.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Injunction by J. W. Baker against Sadie Coman and others. Judgment for plaintiff, and the defendants, except the Mayor and Aldermen of the City of Houston, appealed. From a judgment of the Court of Civil Appeals (179 S. W. 937), reversing the judgment and dissolving the injunction, plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and that of the district court affirmed.
    Kittrell & Kittrell, of Houston, for plaintiff in error. Campbell, Sonfield, Sewall & Meyer, of Houston, for defendants in error.
   PHILLIPS, C. J.

The suit was an injunc-

tion proceeding by J. W. Baker as a private citizen for the suppression, of bawdy houses within what is known as the “Reservation” in the city of Houston — a district segregated by ordinance of the city as authorized by its special charter. . Upon trial, an injunction wjs granted against the defendants joined as owners, lessees and tenants of such houses, but was denied as to the Mayor and Aider-men of the city, against whom it was sought to enjoin the enforcement of the ordinance. The appeal was by the defendants enjoined. The honorable Court of Civil Appeals reversed the judgment and rendered the cause, dissolving the injunction. It determined the case before this court’s decision of Spence v. Fenchler, 107 Tex. 443, 180 S. W. 597.

Under Articles 4689 and 4690 of the Revised Statutes (the Act of 1907), any private citizen of the State is entitled at his suit to have a bawdy house abated by means of injunction without the necessity of showing personal injury. In 'Spence v. Fenehler we declared to be unconstitutional the proviso in Article 4689 which in its effect gave to towns and cities acting under special charters the liberty of permitting by ordinance the operation of such houses if confined within a designated district, for the reason that it was an attempt to confer upon such municipalities the authority to suspend the criminal law of the State which denounces those establishments. Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504. It follows that the ordinance of the city purporting to create the segregated district, was void.

It was also determined in Spence v. Fench-ler that the invalidity of the proviso in Article 4689 did not affect the remaining portion of that article, or Article 4690; and that the two articles should be enforced as though the proviso were no part of them. While urged here to review that decision, we have no disposition to alter it, and it is reaffirmed.

Baker’s right to the injunction is solely in virtue of Articles 4689 and 4690. The jury found that he had suffered no damage by reason of the establishment and maintenance of the reservation. This precluded the issuance of an injunction, in his favor under the general law as expressed in Article 4643, or the ordinary principles of equity. But under Articles 4689 and 4690 he was clearly entitled to the writ unless for some sufficient reason their benefit it to be denied him.

It is contended that since his right depends upon the statute and does not exist unless the proviso therein contained is invalid, the statute cannot avail him because he should not be heard to question its validity. It is sought, in other words, to have applied to Baker’s suit the general rule which refuses to permit a party to question the validity of a law that is the source of the right he claims.

If Baker’s right to the injunction depended upon the proviso, or if its invalidity rendered the entire statute void, the rule would have application. But such is not the case. It is not the proviso which entitles the private citizen to an injunction against these houses without a showing of personal injury. It is not the source of the right which Baker here claims. That right is given by the general part of the statute, which, as we have held, has full force regardless of the invalidity of the proviso. The proviso was only an attempted limitation upon the exercise of a right elsewhere in the statute generally bestowed. Under the holding in Spence v. Fenehler, it was a separable part of the law. With this true, anyone within the terms of the valid part of the law is entitled to invoke it unaffected by the invalid part.

The judgment of the Court of Civil Appeals is reversed and that of the District Court is affirmed.


text:
    MORRIS v. STATE.
    (No. 4476.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    1. Criminal Law <s=>773(1) — Temporary Insanity from Liquor — Instructions.
    In a prosecution for assault with intent to rape, evidence held sufficient to require an instruction as to temporary insanity from the use of intoxicating liquor under Ren. Code 1911, art. 41, providing that such insanity could be shown in mitigation of penalty.

      2. Criminal Law <§=797 — Suspension op Sentence — Instructions.
    A charge was erroneous in predicating the authority to recommend suspension of sentence upon proof that defendant “merited it.”
    3. Criminal Law <§=1172(9) — Harmless Error — I NSTRUCTIONS.
    Although a charge was erroneous regarding recommendations for suspension of sentence, it was harmless where the sentence assessed was beyond the limit touched by Vernon’s Ann. Code Cr. Proc. 1916, art. 865d, relating ti> suspended sentences.
    4. Witnesses <§=358 — Character Witnesses — Cross-Examination.
    Where witnesses are examined very broadly as to defendant’s reputation, cross-examination developing knowledge of witnesses as to defendant’s reputation for peace and quietude when intoxicated was permissible, especially where the use thereof was a defensive issue.
    5. Witnesses <§=358 — Character Witnesses -Cross-Examination — Scope.
    Inquiry of a character witness on cross-examination to develop the soundness of his judgment, and the data upon which it is founded, is permissible.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Dan Morris was convicted of crime, and he appeals.
    Reversed and remanded.
    Chandler & Chandler, of Stephenville, and J. R. Stubblefield, of Eastland, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Conviction was for the offense of assault with intent to rape and punishment assessed at confinement in the penitentiary for a term of six years.

The subject of the assault was Myrtle Cook. The evidence justifies the conclusion reached by the jury.

One of the complaints is based upon the refusal of the court to give a special charge, under article 41, of the Penal Code, with reference to the consideration by the jury of evidence of temporary insanity, if any, produced by the use of ardent spirits in mitigation of the penalty. The statute in question is as follows:

“Neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of- ardent spirits, shall constitute any excuse in this state for the commission of crime, nor shall intoxication mitigate either the degree or the penalty of crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to, the offense for which he is being tried, and, in cases of murder, for the purpose of determining the degree of murder of which the defendant may be found guilty. It shall be the duty of the several district and county judges of this state, in any criminal prosecution pending before them, where temporary insanity is relied upon as a defense and the evidence tends to show, that such insanity was brought about by the immoderate use of intoxicating liquors, to charge the jury in accordance with the provisions of this article.”

There was evidence that ■ appellant assaulted Myrtle Cook with intent to ravish her on the morning of June 9th. After the alleged assault, his team ran away with him, his buggy was turned over, and he got up and walked away without speaking to any one, leaving his horses and buggy and spending the remainder of the day lying under a haystack. There was evidence that on the morning before the alleged assault appellant was drinking. He bore the reputation of a man who drank to excess, and was violent when under the influence of liquor. Negotiations took place between Myrtle Cook and her husband and the attorney for appellant looking to a settlement which would dispose of the prosecution. There was an issue of fact as to the purpose and motive of the respective parties to this transaction. It appeared without dispute that in the course of it a writing was drawn up by the attorney for the appellant in the presence of Mr. and Mrs. Cook in which there was certain recitals of fact which they both assented to and asserted were correct. The document containing these recitals was introduced by the state without limitation upon its effect, and therein it was stated as a fact that at the time of the assault appellant was drunk and crazy; that prior thereto he was in distress of mind owing to a divorce proceeding brought against him by his wife; and that he had been constantly and excessively drinking for 36 hours prior to the assault. The statute quoted made it incumbent upon the court, especially where requested by the appellant, to tell the jury in effect that neither intoxication nor temporary insanity resulting .from the recent voluntary use of ardent spirits would authorize an acquittal, but that temporary insanity so produced might be considered by them in mitigation of the penalty. With the document introduced containing the recitals of fact mentioned, verified as' they were by the testimony of Cook and wife, we are not prepared to say that there was no evidence of temporary insanity produced by the recent use of intoxicating liquor. Particularly is this true when these statements are considered in connection with other facts recited bearing upon that issue. We are therefore of the opinion that the special charge should have been given; and, in view of the fact that the penalty assessed was considerably above the minimum, we think its refusal was so prejudicial to appellant as to require a reversal. Lawrence v. State, 70 Tex. Cr. R. 506, 157 S. W. 480; Massey v. State, 31 Tex. Cr. R. 381, 20 S. W. 758; Truett v. State, 74 Tex. Cr. R. 284, 168 S. W. 525.

The other bills do not present reversible error.

The charge on suspended sentence was erroneous in predicating the authority to recommend suspension upon proof that appellant “merited it”; but in view of the fact that the penalty assessed was beyomj^ the limit touched by article 865d, Vernon’s Ann. Code Cr. Proe. 1916, relating to the suspended sentence, the error was not reversible.

The inquiry by appellant with reference to his reputation was so broad as to justify cross-examination developing the knowledge of appellant’s witnesses as to appellant’s reputation for peace and quietude when under the influence of intoxicating liquor. Particularly was this true when, as above indicated, the use of intoxicating liquor by appellant was one of the defensive issues in the case. Inquiry of a character witness on cross-examination to develop the soundness of his judgment and the data upon which it is founded is permissible. Rice on Crim. Evidence, § 376; Holloway v. State, 45 Tex. Cr. R. 303, 77 S. W. 14; Wharton on Crim. Evidence, p. 157, §§ 487 — 490; Wigmore on Evidence, § 988.

The evidence introduced relating to the willingness of Cook and wife to compound the crime did not require a charge on accomplice testimony. The point ■ has been decided against appellant’s contention in Burge v. State, 73 Tex. Cr. R. 507, 167 S. W. 63, and the decisions of this court therein referred to.

Because of the error pointed out, the judgment of the lower court is reversed, and the cause remanded.
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text:
    COLLINS v. STATE.
    (No. 4646.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    1. Lakceny <©=70(3) — Instructions—Issues Covered.
    In a prosecution for a theft of an auto nine miles from town, where defendant was known to be in town during the evening until 10:30 p. m., and reached another town at 2:30 a. m. with the car, and his explanation at the trial was that a traveling man requested him to drive him to the latter place, and that he was only acting as chauffeur, and that he was trying to sell the car for such traveling man, an instruction to acquit defendant, if he got the car from the traveling man, was insufficient, as the question of alibi, his want of participation in the original taking, and the question of his being in possession of the auto in good faith as driver, should have been presented to the jury; there being no issue of purchase from the traveler.
    2. Criminal Law t§=>770(2) — Instructions— Evidence to Support — Testimony of Defendant.
    Whether or not the jury might believe the testimony of a defendant, he is entitled to have the case passed on on the facts as shown, under appropriate instructions.
    Appeal from District Court, Cottle County; J. H. Milam, Judge.
    Will Collins was convicted of theft, and he appeals.
    Eeversed and remanded.
    W. B. Howard, of Childress, and Arring-ton & Bell, of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with the theft of an automobile from J. E. Welch.

Mr. Welch lived about nine or ten miles from Paducah, in Cottle county. He purchased, shortly before it was stolen, an automobile from the Brisco Manufacturing Company. It was taken at night. The next morning it was found in possession of appellant in Childress county. There is evidence tending to show appellant reached that point half after 2 or 3 o’clock in the morning, and placed the auto in a garage. Subsequently the officers arrested him for theft of the automobile. He gave an explanation as to how he came by it, and there is a conflict as to whether he made more than one explanation. The theory of the state is that he made more than one explanation, and that they were somewhat in conflict.

Appellant’s contention was that he had nothing to do with the theft of the machine, and that he was not in the neighborhood of were it was stolen. His connection, as stated by himself, was to this effect: That he came to the town of Paducah about 5:30 o’clock in the evening, and this seems not to have been controverted, and was around town with a couple of friends, going to moving picture shows after taking his supper with one of these friends. After leaving the picture show he went to a drug store with his companions and indulged in a cold drink. His friends separated from him, each going to* his respective place of abode. He says about the time they left, or within a few minutes, a party approached him, claiming to be a drummer and having a Brisco machine which he did not understand using or handling employed him to drive the machine from Paducah to Childress. The party claimed he was a drummer, and appellant drove the machine, and carried the drummer to Childress. Appellant had registered at the Swan Hotel. After this employment he went to the iSwan Hotel and had the register canceled, giving Swan, the proprietor, reasons for it. At Childress appellant offered to sell the machine, some of the witnesses testifying he .claimed it. The preponderance of the evidence shows he did not, but was trying to sell it for the owner from whom he claimed to have authority to make the sale. This was done openly and about the streets of Childress. The case then is one of circumstantial evidence. Appellant was shown to be in possession of the auto the morning after it was stolen the previous night and gave the explanation as stated above, and his alibi. The time of night the machine was taken is not shown. The owner of it did not know it was taken until the following day. The evidence may be sufficient to show that it was taken during the night. If appellant took the car he had to go from Paducah nine or ten miles to the ■place of tlie ■ theft, and tlience to Oliildress to react that point at or about 2:30 o’clock in the morning. The evidence seems undisputed that appellant came in a car with a school-teacher from the neighborhood five or six miles of town into Paducah in what the school-teacher called his “jitney,” “a Ford car.” There is no evidence to show how he got from Paducah, or by what means he reached Mr. Welch’s place, nine or ten miles from town to get the car. He was located at Paducah about 10 or 10:30 o’clock in the evening. He says he met the man on the street who claimed to be the owner of the alleged stolen car and by whom he was employed, and given a stipulated price to drive him to Childress. This is a sufficient statement of the case on the facts.

The continuance will not be discussed, as the judgment will be reversed on other questions. The continuance was applied for on account of the testimony of Swan, the hotel keeper, who it seems had gone to Colorado to be absent some time. It is alleged he would have sworn to the fact that defendant had registered at his hotel, and later, about 10 o’clock, registered oft and gave his reasons for doing so at the time he did register oE. This testimony may be obtained upon another trial.

The court gave a charge on circumstantial evidence. He also charged the jury that if 'they should find defendant acquired tire alleged stolen car- from Perkins, or if they had a reasonable doubt of that fact, they would acquit the defendant. Perkins seems to have been the man who, appellant says, employed him to drive the car. Objections were urged to the failure of the court to charge on alibi, and special requested instructions refused. He also requested an instruction submitting the law applicable to appellant’s connection with the case as a hired hand. He also excepted to the court’s charge with reference to recent explanation of stolen property, and also that \e court failed to submit the issue raised the testimony of the witnesses as to a ■d party or chauffeur. Special charges asked with reference to these matters, 41 as exceptions taken, all of which efused. The court, in a general way, tn the benefit of the reasonable ex- > given by defendant that he ob-⅞ .car from Perkins. This hardly p question under the facts. If de-i claimed he purchased the car \ this would have been correct, not the explanation. Appel-im to have purchased the car ut he was only playing the m, carrying Perkins from vess, with authority from ⅞ car. This explanation submitted to the jury, the question of appel-

lant’s want of connection with the original taking. Appellant may have been or not chauffeur for Perkins, but if he came in possession of the car from Perkins, not being connected with the original taking, he would not be guilty of theft. The state does not raise the question, or present any testimony, that suggested the theory that there was a conspiracy between Perkins and appellant, or between appellant and anybody else, to steal this car, and then bring it to Paducah and carry it to Childress and dispose of it. This might, under the Smith Case, 21 Tex. App. 96, 107, 17 S. W. 560, have constituted all the parties principals, but that question is not suggested in the testimony. Upon another trial the court should instruct the jury with reference to the facts and conform the charges to the different views and aspects of the testimony, and should direct the jury’s attention, in the various forms required by the testimony, to the fact that unless appellant was guilty in connection with the original taking, he could not be punished as a thief. The fact that he was a chauffeur would not render him guilty. The question of alibi, his want of participation in the original taking, and the fact that he was in possession of the auto as driver in good faith, are all suggested by the testimony, and the law applicable thereto should have been given in charge to the jury.

The jury may or may not believe the testimony but that does not affect the proposition. He is entitled to have the case passed on the facts as shown under appropriate instructions.

The judgment is reversed, and the cause remanded.
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text:
    BECK v. STATE.
    (No. 4645.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    1. Criminal Haw <⅜=»595(4) — Continuance— Absent Witness — Evidence.
    In a prosecution for bigamy, an application for a continuance to enable defendant to prove by his brother that the second marriage was consummated under duress was properly overruled, where there was no evidence of duress.
    2. Criminal Haw <§=31170½(6) — Harmless Error^-Cross-Examination — Scope.
    In a prosecution for bigamy, the sheriff testified for defendant that defendant voluntarily surrendered to him on the offense charged against him. The state, on his cross-examination, undertook to show that when defendant surrendered he also owed a fine, and that he was not informed by the sheriff as to what offense he was. charged with, or where the papers were from. Held, that the exclusion of further cross-examination as to the sheriff’s understanding as to whether defendant gave himself up on the fine or something else, and an instruction that such evidence was improper and not to consider any answer with reference to the sheriff’s having a warrant for the arrest of defendant, and that he owed a fine, showed no error.

      ' Appeal from District Court-, 'Caldwell County; Frank S. Roberts, Judge.
    B. W. Beck, alias L. W. Brady, was convicted of bigamy, and be appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a bigamy conviction, appellant being allotted three years’ confinement in the penitentiary.

Appellant’s first marriage occurred in Harris county, Tex., in l&lb. He lived with this wife in Brazoria county for several years, when he wandered away and married a Mrs. McSmith in Caldwell county in 1916. There seems to be no question of the fact that appellant was twice married.

There were some exceptions reserved to the ruling of the court admitting testimony, or rather as to the manner of examination of witnesses in regard to some evidence showing the first marriage. These matters are not of sufficient importance, we think, to require serious discussion. They pertain to the fact that appellant and his first wife' lived together and were' recognized in Bra-zoria county as husband and wife for four or five years. It is alleged in the exception that the district attorney put questions of a leading nature, but it was simply eliciting the fact that they had lived together, which seems not to have been questioned, and that they were also recognized as husband and wife by the witnesses who lived near them in Brazoria county. The marriage license to the wife he married in Harris county was introduced in evidence, with all of its in-dorsements, showing the fact of its execution by the minister who married them. It was also proved beyond question that the bigamous marriage occurred in Lockhart, Caldwell county, where the license was issued and executed with all the indorsements and returns and records showing the issuance and execution, and it was proved beyond question they were married and lived together until the second wife discovered the fact that her husband had another living wife, when she left him.

There was an exception reserved to the action of the court overruling an application for continuance. This is properly presented. However, we think there is no merit in the application as viewed in the light of the motion for new trial and the evidence introduced. The proposition upon which the continuance was sought was to the effect that he could prove by his brother that the second marriage was consummated under duress, and therefore he ought not to be held responsible. The evidence on the trial gives no intimation of duress. The clerk of the court testified that he issued the license about 8 or S:30 at night; that the absent brother was present, with the father of the woman who married appellant, and obtained the license; that appellant and his would-be wife were sitting in an auto out in front of the courthouse. The license having been issued, these parties went to the Methodist minister, who solemnized the rites of matrimony between appellant and the woman. There was no intimation of duress-from any source. The father of the woman was present at the trial, but was not used as a witness. It would seem he was the only party who could have used any duress, if any was used. The other party who assisted in obtaining the license was the brother of defendant, who is the alleged absent, witness, and by whom appellant says he could prove the duress. The minister was not used as a witness, and neither was the father of the woman who, as before stated, assisted in obtaining the license, and also, it seems, was present at the marriage ceremony. We think there is nothing of merit in the contention.

Another bill shows that while the witness Crews,' sheriff of Brazoria county, was testifying in behalfi of 'the defendant, he stated that defendant voluntarily came and surrendered to him for the offense charged against him. The district attorney, over appellant’s objection, was then permitted to show by the witness, on cross-examination, that at the time the defendant surrendered to him he had other papers for the arrest of the defendant, and that defendant had committed other crimes and offenses than that charged against him for which he was then being tried. Appellant objected to this. It. will be observed that the bill is rather deficient in not stating these offenses, but be that as it may, the court qualified this bill by stating the defendant had undertaken to prove by the witness 'Crews that he had voluntarily surrendered for the felony offense. The state, on cross-examination, undertook to show that he also owed a fine which had not been collected, and did show that the witness Crews did not let the defendant know with what offense he was charged, or where the papers were from, but when the question was asked on cross-examination by the district attorney as to witness’ understanding as to defendant giving up on the fine or something else, the court promptly sustained the objection of appellant’s counsel, and instructed the jury not to consider any answer of the witness with reference to his having a warrant for the arrest of the defendant, and that he owed a fine which had not been collected, and instructed the jury that said testimony was incompetent and improper, and should not be considered by them for any purpose.As presented, there seems to be no error shown.

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

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text:
    MOSLEY v. STATE.
    (No. 4600.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    On Motion for Rehearing, Oct. 24, 1917.)
    1. Bail <©=>65 — Appeal—Recognizance.
    Where the recognizance failed to state the punishment assessed against accused, his appeal must be dismissed.
    On Motion for Rehearing.

      i. Criminal Law <®=>814(4) — Counts—Withdrawal,
    Where an information charged fornication while living together and fornication without living together, and the count charging the' offense while living together was abandoned, the case being submitted on the latter count alone, accused was not entitled to have the term “while living tog-ether,” as used in the statute defined in the charge, for the withdrawal left the information as if it charged only fornication without living together.
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Floyd Mosley was convicted of fornication, and he appeals.
    Affirmed.
    W.. Lindsay Bibb, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from a judgment assessing a fine of $250 against appellant on his conviction of the offense of fornication.

The Assistant Attorney General has filed a motion to dismiss the appeal on the ground that the recognizance given by appellant is not in compliance with the law in that it fails to state the punishment assessed against him. An inspection of the recognizance discloses the correctness of this contention, and, following previous decisions, the motion must he sustained. Martoni v. State, 74 Tex. Cr. R. 64, 166 S. W. 1169; Branch’s Ann. P. C. p. 314, § 615, and cases listed.

Appeal is dismissed.

On Motion for Rehearing.

This conviction was for the offense of fornication, and punishment fixed at a fine of $250.

The appeal was dismissed, hut for reasons shown the motion for rehearing is reinstated.

. The offense is defined by our statute, Pen. Code 1911, art. 494, as follows:

“ ‘Fornication’ is _ the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried.”

The information charged in separate counts each phase of the offense, namely: First, while living together; second, without living together. The first count was abandoned and the second count only was submitted to the jury. The effect of this was to leave the case in the status as though only the second count had been embraced in the information. Branch’s Ann. P. C. p. 232, Betts v. State, 57 Tex. Cr. R. 391, 124 S. W. 424. There was direct testimony to acts of intercourse and circumstances to show they were habitual. The parties were unmarried, and there was evidence that they were not living together. The evidence, in our judgment, is sufficient to sustain the finding of guilty under the second count of the information.

Appellant, by special charges, sought to have the court define the term “while living together,” and complains of failure to charge upoD the first count of the information which contained that term. These criticisms are not well founded for the reason that the first count of the information was abandoned, and the state, in effect, elected to prosecute under the second count., Weathersby v. State, 1 Tex. App. 646. The cases cited by appellant, Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. Rep. 214, and Thomas v. State, 28 Tex. App. 300, 12 S. W. 1098, are not in opposition to the correctness of the procedure followed. • They go to the point that an indictment charging fornication while living together is not sustained by proof of habitual carnal intercourse while not living together. This is a sound proposition, but not applicable to this case. The law was correctly submitted in the court’s charge applicable to the second count. The proof sustains the finding, and there are no errors found in the record.

The order dismissing the case is set aside, and the judgment of the lower court is affirmed.


text:
    VANCE et al. v. STATE.
    (No. 4642.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    Criminal Law <©=>1053 — Appeal — Exceptions.
    Where no exceptions were reserved to the charges or any other matter arising on the trial, a conviction must be affirmed; the evidence not being before the appellate court.
    Appeal from District Court, Potter County; .Hugh L. Umphres, Judge. '
    Jim Vance and another were convicted of burglary, and they appeal.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were convicted of burglary, and their punishment assessed at two years’ confinement in the penitentiary each.

The court gave a charge, and an additional charge. There were no exceptions reserved to the charges, or any other matter arising on the trial, and the evidence is not before us. So far as we are able to discover from the record, there is nothing requiring a reversal. In fact, the matters presented in the motion for new trial cannot be intelligently revised without the evidence.

The judgm’ent will thereafter be affirmed.
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author: DAVIDSON, P. J. PRENDERGAST, J.

text:
    CARLOSS v. STATE.
    (No. 4452.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    Forgery <§=>22 — Offenses—Jurisdiction.
    Where accused sent an instrument through the mail to his father-in-law in Taylor county, directing him to collect the same and apply the proceeds, the courts of Taylor county were without jurisdiction of a prosecution for forging the instrument, which was sent from another county, and was not collected or used in Taylor county; it not appearing that the instrument was attempted to be used or passed in that county for fraudulent purposes.
    Prendergast, X, dissenting.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Lyle Carloss was convicted of forgery, and he appeals.
    Reversed and remanded.
    Scarborough & Davidson, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of forgery; his punishment being- assessed at two years’ confinement in the penitentiary.

The indictment contained three counts— two for forgery, and one for passing the forged instrument. He had been previously tried and acquitted for passing the forged instrument. He interposed a plea of jeopardy, which wais sustained by the court as to the count in the instant indictment, and that passed out of the case, and appellant was tried for forgery.

The state’s case on the facts is that the instrument declared upon came through the mail in a letter supposed to have been written by appellant, directed to his father-in-law at Merkel, in Taylor county. The letter instructed or requested his father-in-law, Bell, to collect the money, and directed its application after being collected. In the first indictment he was charged with passing this instrument upon Bell, his father-in-law. The jury acquitted. In order to render a party guilty of passing a forged instrument, that passing must be with the purpose to defraud. There seems to have been no purpose or intent, as shown by the evidence, to defraud the father-dn-law. The fatheir-in-law testified, and with some animosity, against appellant. After receiving the letter he went to the bank late in the evening and undertook to get Mr. Swan, a bank officer, to send the cheek to Et. Worth for collection; it being drawn on a Et. Worth bank. This, however, was not done, and the witness Bell testified that the reason he did so was that he was afraid there was something wrong about it and it was a forgery. He intended to get this bank at Merkel to send it to the Ft. Worth bank upon which it was drawn for collection. This seems to have ended the matter so far as Taylor county was concerned, except the trial.

The instrument purported to have been made, and the state’s contention was that it was forged, in the city of Ft. Worth, in Tar-rant county, by appellant; that it reached Taylor county by the means stated. In order to give jurisdiction, to or venue in Taylor county, it was necessary, as the instrument was not forged in that county, that it was attempted to be used or passed in that county for fraudulent purposes. If the instrument was not so used in Taylor county, then the venue or jurisdiction of that county from that viewpoint did not attach. The whole case is one of circumstantial evidence as to his having forged the instrument originally. The testimony is anything but cogent, showing the fact that he forged it. But we are not passing upon the weight of the testimony in regard to forgery. The question here is that the county of Taylor did not have jurisdiction, and we are of opinion that proposition is sound. We have stated sufficiently the condition of the record and facts as shown, and we deem it useless to discuss it further. Jessup v. State, 44 Tex. Cr. R. 83, 68 S. W. 988; Bagby v. State, 63 Tex. Cr. R. 610, 141 S. W. 107.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

I am not satisfied that jurisdiction was not in Taylor county. For that reason I do not consent to .the reversal.