author: DAVIDSON, J. PRENDERGAST, P. J., and HARPER, J.

text:
    REDMOND v. STATE.
    (No. 3683.)
    (Court of Criminal Appeals of Texas.
    Nov. 10. 1915.
    On Motion for Rehearing, Dec. 8, 1915.)
    1. Criminal Daw @=419, 420 — Evidence — Hearsay.
    In a prosecution for wife desertion, where the wife testified that after the' desertion she knocked at the door of defendant’s parents’ home, and a Mexican came, who told her that defendant’s father said she (the wife) could not see defendant, such testimony was inadmissible, as being a matter occurring between third parties with which ■ defendant was unconnected.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. @= 419, 420.]
    2. I-Iusband and Wife @=5313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, where the defense expected to show that the wife had left the husband, instead of the husband the wife, the defense’s question to the wife whether she still loved defendant should have been allowed as relevant.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    3. Husband and Wife @=313 — Abandon-meni^-E'videnoe — Relevancy.
    In a prosecution for wife desertion, where the defense attempted to show that the wife had not instituted proceedings until the defendant had refused to pay a “bill” composed' of various items, aggregating over $2,400, which she presented to him, defendant’s question to the wife on cross-examination whether, if the bill had been paid, she would have taken the matter before the grand jury, was improperly excluded.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dee. Dig. @=313.]
    4. Witnesses @=268 — Cross-Examination.
    In a prosecution for wife desertion, where the wife testified that the desertion occurred in Maryland, and not in the county of trial, defendant should have been permitted to go into the question on cross-examination of why she did not institute proceedings against him in Maryland.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dee. Dig. @= 268.]
    5. I-Iusband and Wife @=313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, testimony of the wife as to what a minister whom she had consulted had advised her to do was inadmissible as concerning a matter, occurring between third parties, of which defendant had no knowledge, and with which he was not concerned.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    6. I-Iusband and Wife @=313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, where the wife testified that her visit to her relatives before the desertion was caused by defendant’s mother and sister treating her badly, letters of the wife to the mother and sister thereafter written, most affectionate in character, and employing endearing terms, should have been admitted in evidence as tending to rebut the state’s testimony that the wife left her husband’s home and went to her relatives because the husband’s family were making life uncomfortable for her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    7. Criminal Law @=108 — Venue—Locality of Offense.
    Under Acts 33d Leg. e. 101, § 4, providing that the offense of wife desertion shall be held to have been committed in the county in which the wife may have been when the abandonment occurred, or in the county in which the wife had resided for six months next preceding the filing of the complaint or indictment, where, after marriage, defendant brought his wife to his father’s house, where they lived for about a month, when the wife went to Pennsylvania on a visit, her home continuing to be with defendant and his parents, defendant could be convicted of wife desertion in the county of his parents’ residence under an indictment charging failure and refusal to provide for his wife, such failure being initiated by his desertion of the wife in a railroad station in Baltimore, Md., as the wife’s home was continuously at the residence of defendant’s parents from the time she moved there with her husband, so that her abandonment under the statute took place there.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 220-226, 230, 231, 234; Dee. Dig. <@=>108.)
    8. Husband and Wife <@=>314r — Abandonment — Tbiai>-Instbuotion.
    In a prosecution for wife abandonment, where the testimony raises the issue that the wife, when making a visit prior to the alleged abandonment of her by the husband, intended to abandon him, the issue should be presented to the jury in the charge.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. <@=>314.)
    9. Ckiminal Law <@=>665 — Tbial—Exclusion of Witnesses — Exception of Pbosecutkix —Discketton of Coobt.
    In a prosecution for wife abandonment, where the rule excluding witnesses was invoked, but state’s counsel requested that the prosecuting witness be excepted therefrom and be permitted to remain to assist him, the exception of the wife from the rule by the court was not an abuse of discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566%; Dec. Dig. <@=>665.)
    On Motion for Rehearing.
    10. Husband and Wife <@=>313 — Abandonment-Residence of Wife — Sufficiency of Evidence,
    In a prosecution for wife desertion, evidence held to show that the wife’s residence was in the county where the prosecution took place from shortly after the marriage, so that the venue of the case was properly laid under Acts 33d Leg. c. 101, § 4, providing that wife desertion is committed in the county in which the wife resides at the time of the abandonment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. <@=>313.)
    Davidson, J., dissenting.
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Lawrence Redmond was convicted of willfully deserting his wife, and he appeals.
    Judgment reversed, and cause remanded.
    Jno. C. Scott and Geo. C. Westervelt, both of Corpus Christi, and Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of willfully deserting his wife, his punishment being assessed at a fine of $250 and 60 days’ imprisonment in the county jail.

The Acts of the Thirty-Third Legislature, at page 189, uses this language with reference to wife desertion:

“An offense under this act shall be held to have been committed in the county in which such wife, child or children may have been at the time such abandonment occurred, or in the county in which such wife, child or children shall have resided for six months next preceding the filing of the complaint, information or indictment.” Chapter 101, § 4.

The unquestioned and undisputed evidence shows: That defendant and his wife were married in Panama, and came to Corpus Christi, where Dr. Henry Redmond and family resided, reaching there about the middle of August, 1914. For reasons not necessary now to discuss she desired to go to Pennsylvania, where her mother and relatives resided. To this her husband was opposed. Finally, however, at her earnest solicitation he did agree, and she left Corpus Christi, going to Pennsylvania along about the middle of September to engage in some character of work, if not as a trained nurse, closely connected with it. She says she and her husband were on the friendliest terms, and he was very lover-like in his attentions. In December he was at Baltimore attending a medical college with a view of obtaining his diploma as a practitioner in the profession. She went to Baltimore and spent a few days with him, and they purposed leaving there about the middle of the month. In going to the depot they seemed to have anticipated the schedule time of the train. While about the depot she says her husband disappeared. She waited until about 2 o’clock the same night, and took the train to Philadelphia. That shortly afterward from New Tork her husband commuijicated with her. About the 20th of January, 1915, she came to Corpus Christi. That she had wired her husband to meet her at the train, which he failed to do. She went to the hotel and called him up next day. He did not obey her summons. This was about the 21st of January. The grand jury returned this bill of indictment on the 24th of February, 1915. Testifying in relation to the fact of desertion, she says her husband deserted her at Baltimore, Md., and that the charge in the indictment that he deserted her in Corpus Christi was a mistake; that he did not do so, but deserted her in Baltimore, Md. After she left Corpus Christi, she was not in Nueces county until January 20 or 21, 1915.

Referring to the statute quoted, it will, be seen that a desertion, if a desertion at all, occurred a long time before the expiration of six months, and in fact was only within thirty-five days after her arrival at Corpus Christi or upon reaching Texas. So from any viewpoint this indictmunt could not be sustained. He did not desert her in Texas, and, if this indictment could be sustained from any standpoint, she would have to live in Nueces county six months prior to the prosecution. As the writer understands this record and the facts, if such was a desertion, it was on her part, and not his. There is evidence to the effect that her intention when she left her husband in September may have been a permanent separation on her part. The evidence goes to show that her husband liad nothing, and was dependent upon Ms father for a support, and after they reached Corpus Christi in August until she left in September they were supported by the father, Dr. Redmond. At the time appellant did not even have his license to practice medicine. This she makes evident, as does her mother-in-law, Mrs. Henry Redmond. Her return to Corpus Christi seemed based on collecting $2,480 she claimed he should pay her. So from any viewpoint this indictment cannot be sustained.

There are some other questions in the case that possibly it might be well enough to notice in a general way. Application for continuance ■ was overruled. Inasmuch as that question cannot arise upon another trial as here presented, its discussion is pretermitted.

There are quite a number of bills of exception set out in the record wMeh are not intended to be treated specifically, but in a general way. Mrs. Lawrence Redmond, wife of the defendant, was the principal state’s witness, and testified to such things as the state deemed of importance, and, among other things, she was permitted to state, over objection of appellant, that she “knocked at the door” of the residence of defendant’s parents on January 21, 1915. A Mexican came to the door. She was permitted to answer this question: “What did the Mexican say to you?” Appellant was not present and knew nothing about it, and various objections were based upon this matter. In reply to the question she testified that when she knocked at the door of the residence of appellant’s parents a Mexican came to the door and told her that defendant’s father said she •could not see him, the defendant. This testi,mony was clearly not admissible. It occurred between this witness ánd the Mexican. The Mexican’s statement that appellant’s father said she could not see the defendant was a matter occurring between third parties, and was inadmissible unless defendant was connected with it. The court was then asked to instruct the jury to disregard and ignore the testimony, which was refused. This the court should have done. The whole matter was erroneous.

There are several questions arising out of the visit of the prosecuting witness to the residence of appellant’s father, which are unnecessary to discuss, inasmuch as that matter and visit and connected circumstances are not admissible. The other questions will not .arise again for that reason.

There is another question asked of the witness on cross-examination: “Do you love him [meaning the defendant]?” It was expected to be shown by this testimony that she did not. This was offered as a circumstance to show that the prosecuting witness actually deserted defendant, instead of defendant deserting her. We think this, taken in connection with some of the other matters in the bills of exception, should have gone to the jury. It is shown elsewhere she presented to defendant in February, some ten days or more before the filing of the indictment, a bill for over $2,400, setting out various items which she thought defendant ought to pay her. One was for $600 that she said her trousseau cost, and various other matters; $60 expenses to Corpus Christi; $60 for her return trip; and $1,200 “expenses one year pending time for divorce to be entered, with expenses, attorney’s fees, costs,” etc. The next bill shows that the defendant asked her on cross-examination: “If this bill had been paid, would you have taken this matter before the grand jury?” They expected for her to state in reply that, if prosecuting witness had received the money called for by the bill, in the aggregate sum of $2,480, she would never have'instituted criminal prosecution against the defendant. We think these matters ought to have gone before the jury, as they were germane to the question of desertion, especially in the light of the testimony of the prosecuting witness as drawn out by the state. It also tended strongly to show her return to Corpus Christi was for money, rather than a renewal of her marital relations with defendant.

Another bill was to the effect that appellant wanted to prove on cross-examination, she having testified that desertion occurred in Maryland, and not in Nueces county, why she did not institute the proceedings against him in Maryland. She was not permitted to answer this question. These things are all so connected up that it occurs to us that matter ought to have been investigated, inasmuch as the state put these matters before the jury. The defendant had the right to break the force of 'them as best he could by any legitimate evidence.

Another bill shows the prosecuting witness went to Rev. Dr. Renfro, a Methodist minister, at Corpus Christi, and talked with him about her troubles with her husband. She was asked on direct examination by the county attorney what did Dr. Renfro advise her to do about it. Various objections were urged that it was irrelevant, immaterial, and incompetent, and would be an expression of the opinion of Dr. Renfro on tMs controversy, and same was hearsay, and defendant was not shown to have been present at the time. All of said objections were by the court overruled, and the witness testified by stating Dr. Renfro, the Methodist minister, advised her to see an attorney about the matter, and she thereupon went to Mr. Todd. All of this was error. Objections should have been sustained. These were matters occurring between Dr. Renfro and prosecutrix about which appellant had no knowledge and was not a party to it. It was a matter occurring between third parties.

While the prosecuting witness, Olive Redmond, was testifying for the state, she stated, in substance, that on account of mistreatment of her by Mrs. Henry Redmond, mother of defendant, while she (prosecuting witness) was living at the residence of defendant’s parents, she (prosecutrix) left Corpus Christi and went to Philadelphia, and thereafter, while Mrs. Henry Redmond was testifying for the defendant, she was ashed on direct examination this question:

“Did you do anything to cause prosecuting witness to leave the house where she was then living with her husband together with you and Dr. Redmond, his father?”

Objection was urged to this by the state, and she was not permitted to answer the question, but she would have answered, had she been permitted, that she had not mistreated the prosecuting witness while she was living with the defendant at his parents’ house, and the prosecuting witness had no. reason for leaving the house of defendant’s parents, where she and her husband were then staying, and without cause left said place in Corpus Christi, and went to Philadelphia of her own accord. Several bills of this nature, including three with reference to letters which were written by prosecuting witness, one to Mrs. Henry Redmond, and two to her daughter, Catherine Redmond, all in affectionate and endearing terms were rejected. These letters, as shown, were written to them after Mrs. Henry Redmond and her daughter, Catherine Redmond, had visited the prosecutrix in Philadelphia. -While there they were on amicable relations, and they had prosecuting witness out to lunch with them, and showed her different sorts of courtesies and attentions. These letters were written to them after they left Philadelphia and went to New York. They are rather lengthy and unnecessary to be repeated. They discard all idea of any bad treatment on the part of either Mrs. Henry Redmond or Catherine Redmond. These become important because prosecuting witness had testified that she left Redmonds on account of mistreatment by Mrs. Henry Redmond and Catherine Redmond. The judge seems to have had the idea that, because these letters and this testimony of Mrs. Henry Redmond was cumulative of other facts, therefore it was inadmissible. The reason given for its objection was one of the strongest reasons why it should have, been admitted. The state had put into this record a great deal of testimony from the prosecuting witness to the effect that she left the Redmond home in Corpus Christi and went to Philadelphia because the family, Mrs. Henry Redmond and Catherine Redmond especially, were making life uncomfortable. This went before the jury. Certainly the defense had a right to meet this testimony. It seems it ought to be regarded as fundamental, independent of the statute, that where an adverse fact is put in evidence against a party, that party can meet such adverse fact with such testimony as is legitimate, and which tends to destroy its weight and force. That is one of the first principles of right and justice, and it is expressly so provided by our statute. It is unnecessary to notice further these bills of exception with reference to this treatment of Mrs. Henry Redmond and Catherine Redmond as testified by prosecutrix, and the rejection of the testimony of Mrs. Redmond offered to rebut it.

There are some bills of exception with reference to the argument of counsel, which will not occur upon another trial. There are quite a number of exceptions to the charges, special charges requested and refused. These will not be discussed in view of what has been heretofore said.

There is another question that may be well enough to notice. The “rule” was invoked, and all witnesses were asked to be placed under the “rule.” The court excused prosecuting witness from the rule, and permitted her to remain in the courtroom by the side of her attorneys during the entire trial. She was the state’s main witness, and from the bill of exception it appears the rule was invoked as much or more as to her than any other witness in the case. Be that as it may, she was the important witness for the state. A great deal has been written and said’ about the discretion of a judge in enforcing the “rule.” In some cases this court has held the trial court did not abuse the discretion to the extent of the requiring a reversal, but we think this case has passed the limit and boundary line. The court certainly abused this discretion in permitting this witness to remain in the courtroom. She was permitted to remain and hear all the testimony. It was upon her testimony that the state rested the prosecution. She was not an officer of the court, nor necessary to be present in the execution of the duties devolving upon peace officers in and around the court. She was not an attorney in the case. She was the prosecuting witness, and seems to have been rather critical in her prosecution. She had the advantage of hearing all the testimony, while witnesses for the defense did not. The rule must not be invoked, or ought not to be, and made to operate an injustice. It certainly ought to come within the well-defined limits that requires each case to be kept within the boundaries of fair trial and justice. The discretion of the court was not properly exercised.

There are quite a lot of kindred questions besides those we have mentioned, but they are of the same nature. Without going further into detail, we think enough has been said to indicate that, if this case should ever be tried again, it must come within the rules already announced. The defendant is entitled to a fair trial, and the right to meet all opposing testimony by any legitimate explanation that is within his power, if conviction must be had after fair trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J.

We concur in the reversal of the case, but we do not agree that a conviction could not be bad under tbe indictment, as it charged a failure and refusal to provide for bis wife, and we think sbe was only gone on a visit to Philadelphia, and her home was continuously in Corpus Christi from the time axjpellant and his wife moved to that place. If, however, the testimony raises the issue that prosecutrix, at the time she went to Philadelphia, intended to abandon appellant, that issue should be presented in the charge.

We do not think the court erred in not excluding the prosecuting witness from the courtroom. Defendant was in the courtroom, and we think the court would not abuse his discretion in permitting her to remain in the courtroom after she bad testified on direct examination, if the state’s counsel requested that she be permitted to remain to assist him.

On Motion for Rehearing.

PRENDERGAST, P. J., and HARPER, J.

Appellant has filed a motion for rehearing, in which he earnestly insists that we were in error in holding that Nueces county had jurisdiction to try this cause. The statute under which the conviction was had places the venue of the offense where the abandonment occurred, or where the wife shall have resided the six months immediately preceding the filing of the indictment. Appellant and Mrs. Olive Redmond were married in Panama August, 1, 1914, and arrived in Corpus Christi about August 12, 1914, and made their home with the father of appellant in Corpus Christi. They lived together as husband and wife in Corpus Christi for about one month at the home of appellant’s father, when Mrs. Olive Redmond says she went to Philadelphia, where she had a brother, on a visit. Mrs. Redmond testified that, when she and appellant were married, appellant told her he had told his parents. However, she says, when they arrived in Corpus Christi, his father, mother, and sister denied any knowledge of that fact, and his father seemed to be very bitter, and said to Mrs. Redmond at the house where they were residing that she had just as well drive a dagger through bis heart as to have taken his boy awaj from him; that defendant’s mother doubted the marriage, and asked to see the marriage license, and showed she was very much hurt over the marriage; that, on account of the conduct of appellant’s father, mother, and sister, things were unbearable. Without going into details of the acts she complains of, she testifies that, on account of their mistreatment of her, it was finally agreed to her going North and visiting her people. There is nothing in the testimony, as we read it, suggesting a permanent separation at that time, or that she was abandoning appellant. About the middle of September she left Corpus Christi, appellant supplying her with a ticket and money to make the trip. She says that, when she left on this visit, “it was understood between my husband and myself that I would return as soon as conditions got better, and that, if things did not get better, we would get a house to ourselves”; that she stayed in Philadelphia with her brother until December 9th, and while there, was engaged in social service work. She says she wrote to her husband nearly every day for about three weeks, but during the entire time she was away appellant did not write to her but once. Appellant did not testify. This evidence and other facts and circumstances in the case would raise the issue that appellant at the time he furnished her the ticket and money to go to Philadelphia on a visit intended to abandon her; and, if so, this certainly would give Nueces county jurisdiction. I-Iowever, sbe says in December she learned appellant was in Baltimore, and on December 9th she went to see him, and they lived as husband and wife while in Baltimore. This is positive evidence that she intended no abandonment when she left Corpus Christi, and there is nothing in the record that can be so construed, as we read the record. When they went to leave Baltimore, they went to the depot together to go to Philadelphia. She says:

“We understood that the train would leave Baltimore about 10 o’clock at night, so about 10 o’clock we went to the station, and found out the train would not leave until about 2 o’clock in the morning. At that time I was sick and unwell, and my husband knew my condition. I asked him to return to our room and spend the time, which he refused to do, and stated that we would remain at the station. I told him that 1 did not believe that I was able to stand it, so we went into the station, and I began crying, which seemed to anger him. Finally he took me into the ladies’ waiting room, where it was more comfortable, and he walked out on the outside of the depot for the purpose of getting some fresh air. About 10:30 he returned to the waiting room and asked me if there was anything that he could do for me, and I told him ‘No.’ I never saw him any more after that until I returned to Corpus Christi. I looked for him around the station and could not find him. I stayed at the depot by myself until 2 o’clock, and then took the train to Philadelphia. I afterwards learned that he went to New York, and I talked to him over the phone. He asked me to write to him, and he promised to write to me.”

Sbe says sbe came to Texas in January, and, when she got to San Antonio, she called her husband over the telephone and asked him to come to San Antonio and meet her, but. he said he was unable to come after her, and for her to come on to Corpus Christi; that when she got to Corpus Christi she found her husband was not at the depot to meet her, and she went to the phone and called him, and he told her to wait, that he would come down immediately; that she waited for him more than an hour, when she phoned again, but could get no answer, that she went to the home of appellant’s father, Dr. Henry Redmond, where her husband was staying, but she was unable to get any one to answer her summons; that she wrote appellant, but could get no answer; that she did get him over the telephone, and he would promise to come to the Nueces Hotel, where she was staying, immediately, hut he never came; that she hegged for an interview, but could .never secure one; that appellant refused to pay her hotel bill, and refused to pay for her room and board while she stayed with Mrs. Woodbridge in Corpus Christi. This testimony certainly, to our minds, places the venue of the case in Nueces county, and does not suggest that Mrs. Redmond had or had intended to acquire a residence at any other place than Corpus Christi after she and her husband went there and made it their home in August, 1914; while, on the other hand, the evidence suggests that appellant intended an abandonment when his wife went on a visit to Philadelphia, and, if so, this abandonment took place in Nueces county. There is no more evidence of abandonment taking place in Baltimore, Md., than there is of the abandonment occurring when Mrs. Redmond left to go to Philadelphia on a visit. The unequivocal act of abandonment took place after her return to Corpus Christi. This is the time she was made aware that, in so far as appellant was concerned, he would contribute nothing to her support, and would live with her no longer. But, regardless of when and where the abandonment occurred, the evidence shows that Mrs. Redmond’s residence was in Nueces county from and after August, 1914, and the venue of the case was properly laid in 'that county.

The motion for rehearing is therefore overruled.

DAVIDSON, J. I adhere to what I wrote in original opinion.
      @=Eor other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON,, J.

license: Public Domain

text:
    CLAY v. STATE.
    (No. 3817.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Witnesses <&wkey;318 — Corroboration—Reputation.
    The state cannot introduce testimony of the general reputation for truth of its witness, merely because the testimony of defendant’s witnesses directly conflicts with his.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. <@^318.]
    2. Crimínal Law <&wkey;U70% — Prejudicial EEBOE — WITHDRAWAL 0E EVIDENCE — GENERAL Reputation.
    Error in not withdrawing testimony, improperly admitted, of the general reputation of state’s unimpeached witness, his testimony, in direct conflict with that of defendant’s witnesses, being directed at the vital point of the case, was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. &wkey; 1170%.]
    3. Criminal Law &wkey;>693 — Objection to Evidence-Time.
    Objection, to unauthorized testimony of the general reputation of state’s witness, made for the first time by requested charge to withdraw, presented before argument, is not too .late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1630; Dee. Dig. <&wkey;693.]
    4.Homicide i&wkey;300 — Conflicting Instructions — Self-Defense.
    There is no error in giving the general charge, submitting self-defense in a general way on real and apparent danger, as well as defendant’s requested charge, submitting it more closely and directly applicable to the immediate facts; the two not being inconsistent, but the requested instruction being but an amplification of the doctrine of apparent danger, applying the law directly to the facts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. &wkey;>300.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Will Clay, Jr., was convicted, and appeals.
    Reversed and remanded.
    Foster & Davis, of San Augustine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON,, J.

This record presents the old story of conflict, positive and direct, as to the circumstances attending the homicide. The state’s case puts the defendant in the wrong from the beginning. The defendant’s case puts him acting in self-defense. The evidence, we think is unnecessary to be detailed.

A witness named Jones was one of the most important, if not the most important, state’s witness. In rebuttal the state offered quite a number of prominent witnesses, among them the sheriff, to sustain the general reputation of the witness Jones as to truth and veracity. No attack had been made on his testimony by impeachment, or offer of impeachment, and no predicate laid for impeachment. Branch, Crim. Law, § 876. It is true that the testimony of the witness Jones was directly and flatly contradicted by testimony offered by the defendant as to the facts about which Jones testified, but this did not authorize the introduction of evidence to sustain his reputation or standing as a witness and his credit from the viewpoint of veracity. McCue v. State, 170 S. W. 280. Jones was not a stranger in that community, but had lived there a long time, and these people knew him. There was no predicate laid, nor questions propounded, indicating he had testified differently or had made different statements. In the Thompson Case, 167 S. W. 345, predicate was laid to impeach, but no evidence showing different, statements was tendered. Evidence of general reputation was held to be properly admitted. At the time this testimony was introduced appellant offered no objection, and the first time he raises the question as to the impropriety and illegality of this testimony was in a written charge to the court, requesting him to instruct the jury not to consider this testimony with, reference to the standing of Jones for veracity for any purpose. This was refused by the court. As this case is presented, this was important testimony. Jones was contradicted as to the main facts, and the state had made out a pretty strong case against appellant. The state necessarily relied largely upon the testimony of Jones to support its theory of murder. His testimony may have put the defendant in the attitude of provoking the difficulty and bringing about the final tragedy. This was emphatically denied by appellant in his testimony, as well as by other witnesses placed on. the stand by him. The testimony of Jones, then, was directed at the very vital point of the case. For no other reason than the fact he was contradicted by these other witnesses as to those facts, or rather they testified exactly contrary as to the condition, or environments at the time of the difficulty, did not justify the introduction of testimony showing that his reputation for truth and veracity was good. It is sometimes a close question as to the withdrawal of testimony illegally admitted, but whenever that testimony is illegal and material, or is calculated to affect the trial of the case injuriously to defendant, then the testimony, although withdrawn, cannot cure the error. But here the court positively refused to withdraw it. It is sometimes also a close question with reference to the withdrawal of testimony at the stage of the trial when the motion is made, but whatever that may be, or whenever it may occur, if the testimony is illegal and material, or likely to have a material bearing, upon the case, it may be withdrawn, and it is error not to withdraw it, even when requested in a charge. Prior to the enactment of the late statute which requires the court to give the charge to the jury before argument is begun, the matter would have presented less trouble than here presented. But now these charges must be given before the argument by counsel for the state or defendant, so that exceptions may be taken and errors pointed out. The court may modify or change his charge to meet the suggestion or criticism. This bill shows this matter was properly presented in accordance with this late statute. So before any argument was begun to the jury, this charge was requested; it was not given, but expressly refused. So the defendant has brought himself strictly within the rules provided and as now existing. If this evidence had been withdrawn from the jury, no argument could have been predicated upon it before the jury. It was permitted to stand before the jury, and, of course, became the subject of argument by counsel for the state against the defendant. Though a little late in his objections as to this matter, still he is within the rule, and the court could have withdrawn it so that the matter would not have been considered by them, nor would it have been the subject of discussion by counsel. We believe this error of sufficient importance to require a reversal of this case, and especially in view of the fact that appellant was awarded 25 years in the penitentiary. The jury could have awarded him 5 years, but they did not; they gave him 25. The authorities will be found collated in Mr. Branch’s valuable work on Criminal Law, § 323. Some of these cases may be said to be exactly as this case, that is, the first objection was made to the introduction of illegal testimony in requested instructions withdrawing such testimony from the consideration of the jury. That practice has been sustained by this court, so far as the writer is aware, in all its history, provided, of course, the testimony is of such a nature as would be hurtful. Branch, Crim. Law, § 874, p. 557. Also for discussion of allied and kindred questions as to materiality of such testimony and its dangerous position in a case, see Mr. Branch’s Crim. Law, §§ 321, 322.

There are objections urged to the court’s charge on the theory of self-defense. As given by the court in the main charge it may be said to be subject to criticism, but appellant requested an instruction, which was given by the court, which seems to cover the criticism he made upon the charge of the court, known as special charge No. 1 in the record. If these two charges had been inconsistent so as to leave the jury in doubt as to what the law was, his proposition might be maintainable. The theory of the defendant was the court’s charge was a little restricted in submitting the view of danger. He submitted it in a general way upon real and apparent danger. The requested instruction, which was given, submitted it more closely, and directly applicable to the immediate facts. This the court gave. The two charges are not inconsistent, but the requested instruction is but an amplification of the doctrine of apparent danger, applying the law directly to the facts. We do not believe there was any error in this matter.

For the error discussed, the judgment will be reversed, and the cause remanded.
      (@=>For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


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

text:
    SMITH v. STATE.
    (No. 3723.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    Dissenting Opinion, Nov. 20, 1915.)
    Jxjky <&wkey;70 — Triai^Speoial Venike — 'Waiver — Statute.
    Code Or. Proc. 1911, art. 657, provides that the defendant in a capital case may obtain an order for a special venire, upon motion in writing. Article 22 provides the defendant may waive any. right except to trial by jury. Upon consideration of defendant’s motion for a special venire it was agreed between the district attorney and the court that the state would waive capital punishment and that the court might submit to the jury, as punishment, imprisonment for life or a less term, which was done, and the motion for special venire denied. Held, that though defendant did not expressly agree to -the arrangement where he thereafter announced ready for trial and did not complain of the selection of the jury from the panel of the week, he waived his right to a special venire.
    [Ed. Note — Eor other cases, see Jury, Cent. Dig. §§ 310-830, 340, 350; Dec. Dig. &wkey;70.]
    Davidson, J., dissenting.
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Peter Smith was convicted of rape, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of rape, and his punishment assessed at ten years in the penitentiary. The sole question herein is whether the action of the court in denying appellant’s motion for a special venire, under the circumstances of this case, presents reversible error.

The statute (article 656, C. C. P.) authorizes the prosecuting attorney in a capital case, on motion either written or oral, to obtain an order for a special venire. Article 657 is:

“The defendant in a capital case may also obtain an order for a special venire at any time after his arrest upon an indictment found, upon a motion in writing, supported by the affidavit of himself or counsel, stating that he expects to be ready for the trial of his case at the present term of the court.”

Appellant’s only bill of exceptions shows, in substance and effect, that when the case was called for trial the state announced ready. That before he announced ready he made a motion stating that he was charged with rape, and under the law entitled to a special venire from which to select a jury. He thereupon moved and prayed the court that such venire be selected and summoned, and he be furnished a list in order that he may be tried as provided by law. This motion was in no way sworn to as the statute above quoted requires, either by himself or his attorney. The state objects to this motion, and claims it is wholly insufficient because it is not sworn to. However, it seems that upon consideration of it, it was agreed between the district attorney and the trial judge that the state would waive capital punishment, and agreed that the court might submit to the jury as punishment, in the event he was found guilty, confinement for life or any term not less than five years, and would not submit to the jury, or authorize them to inflict the death penalty. The court so charged. We think it reasonably certain from the bill and record that this, while not expressly shown to have been agreed to by appellant, was in effect agreed to by him and the trial proceeded, for he thereupon announced ready, a jury was selected from the panel of the week which in no way was then or now complained of by him. The court charged as to the penalty stated, to which there was then and is now no objection whatever by him.

It is the settled law of this state, so held in a great many and a long line of decisions, that our statute regulating special venires, the formation of juries in capital and all other cases, are merely directory and not mandatory. Murray v. State, 21 Tex. App. 466, 1 S. W. 522; Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Roberts v. State, 30 Tex. App. 291, 17 S. W. 450; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Bizzell v. State, 72 Tex. Cr. R. 442, 162 S. W. 861, and cases therein cited. The statute (article 22, C. C. P.) expressly provides that the defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case. He can waive a special venire. Houillion v. State, 3 Tex. App. 537; Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209.

We think it dear that by the appellant’s action herein, he waived his right to a special venire, and that he and the state and the court acted upon this at the time. As stated, he did not even make a motion for a special venire until after the case was called for trial and the state had announced ready. He doubtless acted upon the judge’s and the district attorney’s agreement that the jury should not be authorized to inflict the death penalty. If he had resisted this agreement and objected to being tried by the regular jury and persisted in his insistence for a special venire, a different question would be presented, but he did nothing of the kind, as shown above. As presented, no reversible error is shown. The sentence herein is for ten years’ imprisonment. It should have been in conformity with our indeterminate sentence statute. The clerk of this court will enter the proper judgment of sentence. As thus reformed, the judgment will be affirmed.

HARPER, J.

(concurring). In concurring in the opinion affirming this case, I wish to call attention to articles 656 and 657 of the Code of Criminal Procedure. Article 656 reads:

“When there is pending in any district court a criminal action for a capital offense, the district or county attorney may, at any time after indictment found, on motion either written or oral, obtain an order for a special venire to be issued in such case.”

Article 657 provides where the state has not applied for a special venire, the defendant may apply, and reads:

“The defendant in a capital case may also obtain an order for a special venire at any time after his arrest upon an indictment found, upon motion in writing, supported by the affidavit of himself or counsel, stating that he expects to be ready for trial of his case at the present term of the court.”

In this case the state made no application for a special venire. The defendant made none until the case was called for trial. He then filed an application which was not sworn to by any one, and he nor his attorney did not file an affidavit in connection with the application that the defendant expected to be ready for trial.

A special venire is not a matter of right in a capital case, but may be obtained only under the conditions named in the statute, and those conditions the defendant did not comply with in making his application. It is the better practice that application, when a special venire is desired, be made therefor prior to the day the cause is set for trial, and in sufficient time to allow it to be drawn and summoned. Where one waits to make application until the case is called for trial, and the state has announced ready for trial, it seems to be but an effort to postpone or continue the case after all the witnesses have been to the trouble and expense of attending court, and should not and will not be favored, and the court did not err in overruling the application in this instance, for the application did not comply with the provisions of the law. The writer is of the opinion, also, it came too late, unless some reason is shown why it was not filed in time to permit a special venire to be summoned.

DAVIDSON, J.

(dissenting). When this case was called for trial the state announced ready. Appellant did not, but failed or made a motion demanding a special venire, the case being rape, which is a capital offense. This being the case and the law, he was entitled to a special venire from which to select a jury. One objection by the state to having a special venire seems to be found in the fact that appellant did not file an affidavit previous to the calling of the case asking for a special venire, and this error of the court was sought to be condoned by the judge and district" attorney entering into an agreement that they would waive the death penalty in the case for appellant, thus rendering a special venire unnecessary. The defendant was not consulted in regard to the agreement, nor were his wishes taken into account in regard to it. By this action on the part of the court and the district attorney they recognized that appellant was clearly entitled to the special venire, and to avoid this they made this agreement to waive him out of his legal rights in this matter by not submitting the death penalty as part of the punishment. They did submit, however, life imprisonment. This was their view of the matter. These questions have been definitely deterniined against the trial court and the opinion in the instant case as rendered by the majority of this court. Burries v. State, 36 Tex. Cr. R. 14, 35 S. W. 164; Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209. The fact that those cases are in the way of affirmance, and required reversal, ought not to justify this court to ignore them, or overrule without alluding to them.

The statute provides the accused may demand, as the state may, a special venire. The defendant, if he believes or is willing to make the affidavit to the effect he will be ready to try his case, may, under such circumstances, make such oath to secure a special venire. The statute so provides, but it does not deprive him of a special venire if he does not make such oath. He may not be ready or he may believe that he will not be ready. To require him to make that oath when he believes his case cannot be ready for trial, might subject him to a- charge of swearing falsely. But that does not deprive him of the right of trial by jury as provided by statute, to wit, special yenire. He is entitled to have such venire summoned upon his call fói it, and out of it make a selection of the jury to try him for his life. Burries v. State, 38 Tex. Cr. R. 14, 35 S. W. 164; Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209. The-Farrar Case is cited by my Brethren as authority for the waiver on the part of appellant in this case of the special venire. How that can be I do not understand from reading the Farrar Case. The defendant here did not waive his right to a special venire, but expressly demanded it. In the Farrar Case the facts show that the defendant did not call for a special venire until after the-overruling of his motion for a continuance. In that case the court held that was not tantamount to a waiver of his right to a special venire. That was the only question in the Farrar Case decided by the court. In that case, as in this, the defendant in a capital case was forced to trial before the regular jury for the week. Appellant reserved a bill of exceptions to the refusal of the court in the Farrar Case, as appellant did in this-case, to accord him a special venire. The court qualifies the bill of exceptions in the Farrar Case as follows:

“The request for special venire was not made until after the motion of defendant for continuance had been overruled and the jury called into, the box.”

Quoting from that opinion, it is said:

“It will be seen from this that the court based', his refusal to allow appellant a special venire on the fact that his request was not made until after the motion of defendant for continuance had been overruled and the jury called into the-box. This was a capital case, as the indictment charged the robbery to have been commit-■ ted with firearms (see Ex parte Epps, 35 Tex. Cr. R. 406 [34 S. W. 113]), and therefore appellant was entitled to a special venire unless-he waived it. This he did not do, unless it be-conceded that his failure to call for special venire prior to the overruling of the motion for-continuance was a waiver. In Houillion v.. State, 3 Tex. App. 537, it is said: ‘If appellant remains silent as to a service of the special venire, and when called upon pleads to the indictment, and suffers the trial to proceed without objection, taking the chance of being acquitted by the jury, he wifi be presumed to have waived his right to a service of a copy of the-same as provided by law.’ * * * Articles. 643 and 644 of the Code of Criminal Procedure-regulate -the procedure with reference to the obtention of a special venire, the first authorizing an application by the state, and the last article authorizing an application on the part of the defendant. In Hall’s Case, 28 Tex. App. 146 [12 S. W. 739], it appears that an order for special venire was made by the court on appellant’s verbal motion without affidavit. So it would seem that the form of the motion is not regarded as essential. However, that may be, it occurs to us that the fair interpretation of articles 642-681, Code of Criminal Procedure, is intended to provide the character of venire from which a jury in a capital case is to be selected, and that the obligation is cast upon the state in the first instance to ask for this special venire. The machinery for the trial of a capital case is provided by law, and it is the duty of the court primarily to see that the proper tribunal is selected. We hold, if the state has not acted in the matter'of securing a special venire, and if the court has not taken the steps to provide for this tribunal, it is appellant’s right to object to being tried, by any other than a special venire at any time prior to his agreeing to be tried by the regular jury. Of course, if he raises no objection, and no special venire has been summoned, and the regular jury for the week is called into the box, and he proceeds to the selection of jurors from this panel, he may be regarded as having waived his right to a special venire. But here, as we understand it, when he was first confronted with the jury, after his motion for continuance was overruled— that is, when the jury for the week was called into the box — he objected to being tried by that body, and insisted on a special venire. We hold that his objection was in time, and that there was no waiver of his right to a special venire. See this question discussed in Burries v. State, 36 Tex. Cr. R. 14 [35 S. W. 164], ‘The law guarantees to persons charged with capital offenses the character of tribunal authorized and appointed by law to try them;’ and because he was refused such a tribunal by the action of the court the judgment is reversed and the cause remanded.”.

That opinion was written by Judge Henderson. The statutes were then as they are now on this question, and with such construction were re-enacted by the Legislature. I have quoted from that opinion, which cites the Houillion Case, because the majority opinion relied upon those two cases as their authority for the holding, that defendant in the instant case waived his right. I do not understand how such a conclusion could possibly have been reached from those cases. Judge Henderson also wrote the Burries Case, 36 Tex. Cr. R. 14, 35 S. W. 164. The syllabus in that case says:

“Robbery committed by the use or exhibition of a firearm or other deadly weapon, being a capital felony, a party prosecuted therefor is entitled to a special venire and to one day’s service of a copy of such special venire prior to his trial, unless he has waived (if he can do so) his right to such special venire; and it is no answer or excuse that neither the state nor the defendant called for such special venire or failed to have one summoned for the trial or that to summon one and serve defendant with a copy thereof would operate a continuance of the case.”

Quoting from that opinion:

“If it was competent for him to waive a trial by special venire, it does not appear that he did so in this case. On' the contrary, he claimed his right to a day’s service of the list of special veniremen summoned for his trial. It did not excuse the state, because neither the state nor the appellant called for a special venire, or failed to have such special venire summoned for the trial, because the law malees that an essential part of the machinery by which one accused of a capital offense is to be tried. Nor was it any excuse that if the venire had been summoned, and the list served one day in advance of the trial, it would have operated a continuance of the cause. (Italics mine.) The law guarantees to persons to be tried for offenses the character of tribunal authorized and appointed by law to try them; and, because such a tribunal was not used, it is no answer to say that sufficient time was not left during the term to try the party after the manner and by the character of jury authorized by the law.”

I do not understand how language could be plainer or clearer. The majority opinion cites the Farrar Case as sustaining their proposition, that defendant waived his right. I cite the Farrar Case and Burries Case specially to show the holding of my Associates is in opposition and contrary to all previous authorities on that particular question, and particularly directly in the face of and contrary to the cases they cite. It may be that the defendant could, as Judge Henderson writes, waive the special venire by accepting the jury for the week and go through the trial without objection to that procedure, or calling for special venire, but the record in the instant case eliminates all such questions, for as soon as his case was- called for trial he demanded the special venire. This he was refused by the district attorney and the court entering into a solemn agreement to waive him out of his right of trial by a special ve-nire. They made good their agreement over opposition of appellant by reason of judicial power, and now it is solemnly asserted that appellant did the waiving. This is not right, and ought not to be. I do not understand that it can be correctly held that a district judge and district attorney, either singly or jointly, can waive defendant’s rights. Even in misdemeanors the defendant only can waive a jury; the state cannot, nor can the court. His own counsel cannot do that with reference to trial by jury, and the statute itself provides that even he cannot do it. Collins v. State, 47 Tex. Cr. R. 303, 83 S. W. 806. The statute says he may waive any right accorded him except trial by jury. The Constitution says:

“The right of trial by jury shall remain inviolate.” Article 1, § 15; O. C. P. art. 22.

The Burries and Farrar Cases ought not to be ignored or used in a way not to sustain a proposition they expressly decide the other way. The judgment ought to be reversed, and the cause remanded. So believing I cannot agree with my Brethren in their affirmance. I see no use in having law unless it is obeyed, and especially when the accused is insisting upon his legal rights based on that law. Our laws' are made to insure the defendant a fair trial, and not to be disregarded and overturned to prevent such trial.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    WERTHEIMER v. HARGREAVES PRINTING CO.
    (No. 7430.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 13, 1915.)
    1. Appeal and Error <&wkey;916 — Record — Pleadings — Presumptions.
    In the absence of pleadings in the record, it must be presumed that they were sufficient, and that the rulings of the court thereon were correct, especially where it does not appear that any exceptions were called to the attention of the court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <&wkey;> 916.]
    2. Justices op the Peace <&wkey;90 — Pleading —Appeal.
    Pleadings in the justice court, and on appeal therefrom to the county court, may be oral.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Gent. Dig. § 306; Dee. Dig. «&wkey;90J
    3. Appeal and Error <&wkey;699 — Record — Statement op Eacts — When Required.
    Where the record contains no statement of facts, the correctness of instructions given or refused cannot be reviewed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. §§ 2928-2930; Dec. Dig. <&wkey;> 699.]
    Error from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Hargreaves Printing Company against the Wertheimer Iron & Metal Works and others. From a judgment in the justice court against the defendant Simon Wertheimer, affirmed in the county court, he appeals.
    Affirmed.
    W. M. Pierson, L. A. Pierson, and H. Bas-com Thomas, all of Dallas, for appellant. Bennett 1-Iill and G. D. Hunt, both of Dallas, for appellee.
   RAINEY, C. J.

Appellee brought this suit in the justice court of Dallas county, Tex., to recover on an account contracted by the Wertheimer Iron & Metal Works, a corporation now dissolved, and against Simon Wert-heimer, Israel Dreeben, and Sam Freshman, directors of said dissolved corporation, as individually liable for said debt. Judgment was rendered in the justice court, and the case was appealed to the county court. On hearing judgment was there rendered for appellee against the said corporation and S. Wertheimer, individually, and in favor of Dreeben and Freshman. From this judgment Simon Wertheimer has sued out this writ of error.

The assignments are predicated upon alleged errors of law appearing upon the face of the record. The record contains no bills of exceptions to the action of the court, nor does it contain any statement of facts.

The record does not show any pleading of plaintiff in the justice court, nor in the county court. Pleadings in the justice court may be oral, and the same rule applies in an appeal to the county court. In the absence of any pleading in the record, we must presume that it was sufficient, and the ruling of the court on the exceptions to the pleading, if ever acted on, is correct, especially so where there is nothing to show that any exceptions were called to the attention of the court and acted upon by it.

There being no statement of facts in the record, we cannot determine the correctness of the charge, or special charge refused, as that depends upon the evidence adduced and the pleadings. The presumption is in favor of the judgment of the court, unless the error is disclosed by the record, which is not done in this instance.

The judgment is affirmed.
      <gs»For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    FIRST TEXAS STATE INS. CO. v. HARE.
    (No. 7.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1915.)
    1. Insurance <&wkey;>539 — Health Insurance— Provision eor Notice — Validity — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, providing that a stipulation in a contract requiring notice of any claim of damages within less than 90 days shall be void, a provision of a health insurance policy requiring notice within 90 days from the beginning of illness was void. .
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. <5&wkey;539.]
    2. Appeal and Error &wkey;>230 — Assignments oe Error — Assignment in Brief.
    An assignment of error outside of the assignments in the motion for a new trial, first presented in the record in appellant’s brief, is too late for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>230.]
    3. New Trial <&wkey;108 — Newly Discovered Evidence — Change in Result.
    A new trial on the ground of newly discovered evidence will not be granted where such evidence could not change the result of the action.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. &wkey;108.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by H. C. Hare against the First Texas State Insurance Company, continued after plaintiff’s death by his widow, Annie Hare, for herself and as next friend of her infant child. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. L. Ayeock, of Eountz, for appellant. V. A. Collins, of Beaumont, for appellee.
   MIDDLEBROOK, J.

This suit was instituted by appellee, H. C. Hare, against the appellant, First Texas State Insurance Company, in the justice court, precinct No. 1, Hardin county, Tex., for $112, alleging that said amount was due him under health dause in policy issued to him in January, 1913. H. C. Hare died before trial of the'case, and by due course of pleading, on August 7, 1915, Annie Hare suggested the death of her husband, H. O. Hare, and made berself party plaintiff by order of tbe court duly entered. Tbe case then went to trial, resulting in a judgment for tbe amount sued for in favor of plaintiff. Defendant insurance company perfected its appeal to tbe county court.

In due time and by proper pleadings Annie Hare suggested to tbe court tbe birtb of a posthumous child, unnamed infant, and son of H. O. Hare, deceased, and by permission of tbe court, intervened as next friend for said child, and prayed that be be adjudged one-half of tbe amount sued for. Upon these pleadings tbe case went to trial in tbe county court January 5, 1915, and tbe trial resulted in a judgment for tbe plaintiff, Annie Hare, for berself and as next friend for her infant child, in tbe sum of $112 and from this judgment tbe defendant insurance company perfected its appeal to tbe First Court of Civil Appeals at Galveston, and tbe case is now before this court by transfer made by tbe Supreme Court of Texas.

There is no statement of facts in the record, tbe case having been tried by tbe court, and tbe trial court filed bis conclusions of law, and findings of fact, in tbe case. Tbe contract, among other things, provides:

“Failure on tbe part of tbe insured or beneficiary to give written notice to tbe company, or to the nearest or any other of its convenient local agents within 90 days from the date of any injury, fatal, or nonfatal, or of tbe beginning of an illness for which claim is to be made, with full particulars thereof; and full name and address of the insured upon regular blanks furnished by the company shall limit the liability of the company to one-fifth of the amount that would otherwise be payable thereunder.”

Tbe trial court found that such notice was not given to tbe appellant company. He further found that on tbe second day of Hare’s sickness, Mrs. Hare called in one W. H. Snow, who was local agent for appellant, and who collected tbe premiums on tbe policy sued on from tbe 13th day of February, 1913, to and inclusive of tbe 13th day of September, 1913, three or four months of this time being tbe same time that H. G. Hare was ill, and during much of which time H. O. Hare was unconscious, and for tbe whole of said time was unable to do any sort of business. He also found that tbe receipts for such premiums contained tbe following stipulation :

“Notice: This receipt is not valid for mote than one month’s premium, or if any change or erasure is made-herein; nor will it be valid unless countersigned and delivered by an authorized collector of the company before the expiration of the month named, and dated so as to show the true date of payment of the premium. If said premium is not paid on or before the first of the month above named said policy shall lapse and the liability of the company cease, except as otherwise provided in said policy.”

He further found that Mrs. H. 0. Hare asked Snow to make a written report to bis company on tbe second day of H. 0. Hare’s illness, and Snow promised her be would do so, but he did not make such written report. He also found that H. 0. Hare was sick with typhoid fever for a period of 118 days, and that for a period of more than 90 days was unable to attend to any business; and be also found that Drs. Roark and Thomas made written report to tbe company on its blanks after 90 days from the beginning of Hare’s illness. This is a sufficient correlation of tbe facts for an understanding of tbe case.

Appelant contends: (1) That tbe written notice not having been given as stipulated in tbe contract, tbe appellee cannot recover more than one-fifth, $22.40, of tbe amount provided by the policy for the length of time Hare was sick. (2) That a new trial should have been granted by tbe trial court, because that court erroneously found Snow to be tbe agent of tbe insurance company. (3) That a new trial should have been granted on newly discovered evidence. We dispose of tbe issues in their order.

Tbe stipulation in tbe contract requiring written notice to be given within 90 days from tbe beginning of tbe illness is contrary to our statute, and is therefore void. It limits tbe time of notice to less than 90 days. Vernon’s Sayles’ Ann. Civ. St. art. 5714; Casualty Co. v. Nelson, 153 S. W. 674; Telegraph Co. v. Smith, 130 S. W. 622. Tbe trial court found that written notice was given upon tbe company’s blanks in a reasonable time from tbe beginning of Hare’s illness. This being true, we deem it unnecessary to pass upon tbe proposition of Snow’s agency for tbe company.

There is set up in appellant’s brief what be terms his assignment of error outside of tbe assignments in bis motion for a new trial. This is presented for tbe first and tbe only time in tbe record of this case, in appellant’s brief, and it comes too late for consideration by this court.

We do'not think tbe assignment of newly discovered evidence requires consideration under our disposition of tbe case because, if true, and if such evidence bad been introduced upon tbe trial of tbe case, it could not change tbe result of this suit.

Our conclusion is that there is no error requiring a reversal of this case, and that it should be affirmed, and it is so ordered.

Affirmed.


author: RAINEY, 0. J.

text:
    TRINITY & B. V. RY. CO. v. WILLIAMSON.
    (No. 7419.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 30, 1915.
    Rehearing Denied Dec. 4, 1915.)
    1. Railboads &wkey;>443 — Injury to Stock on Track — Liability — Sufficiency op Evidence.
    In an action against a railroad for killing a mare on its track, evidence held to warrant verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443J

      2. RAILROADS <&wkey;413 — Injury to Stock on Tracks — Fencing—Duty to Repair.
    Where a railroad allowed the gate of its fence placed for the convenience of an adjoining- landowner to become out of repair, it was liable for injury to stock of another landowner which came upon its right of way through such unrepaired gate and was killed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig-. &wkey;413.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by R. A. Williamson against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Morrow & Morrow, of Hillsboro, for appellant. Will M. Martin and Walter Collins, both of Hillsboro, for appellee.
   RAINEY, 0. J.

This suit was instituted by appellee against appellant to recover for the value of a mare which was negligently struck by one of appellant’s engines and trains and was killed on its right of way. Appellant answered, denying negligence, that its right of way fence was in good repair, and that said animal was killed from causes unknown to appellant, and not through any negligence of its agents or employes. The cause was tried before a jury, and resulted in a verdict and judgment for appellee, from which this appeal is prosecuted.

Conclusions of Fact

Appellee’s horse escaped from his premises to those of one Yarbro, which adjoined, and through appellant’s right of way fence onto its track, where said animal was killed. The appellant’s track passed through the Yarbro farm, and for Yarbro’s convenience two gates were placed in the right of way fence, one on the east side, and the other on the west side. The right of way fence and gate on the east side, through which the horse passed to the right of way, were out of repair, which evidenced negligence on the part of the appellant. One witness testified in reference to the gates and fence as follows:

“I kept the one on the west side closed, and the one on the east side was open and never closed. It was open when I went there and when I left there. * * * The fence on the east side of the railroad is torn loose from the posts in places, and the staples are out in some places. In some places the fence is down, and in some it is up.”

An eyewitness to the killing of the animal (and there is no other testimony as to the exact manner of killing), testified as follows:

“I live on east side of track. I remember about a mare of Dr. Williamson being killed. I was living at the same place then, on the east side of the railroad. In working about Mr. Stephens’ place, I went back and forth from my place to his. I crossed the Trinity & Brazos Valley Railway track. I remember where trestle was. Sometimes I would cross the railroad right of way at trestle, and sometimes I would go through gate where my house was. I went through the gate that morning; that gate is about 300 yards south from the trestle. I saw the mare killed. It happened in the morning, before sunup. I was standing on the crossing about 10 feet from the railroad when I saw her killed. What attracted my attention to it, the train was whistling, and the horses wore running in front of it. The train was about 400 yards north of the trestle when I noticed it whistle, I reckon. There was some stock on the_ track at the time I looked up and saw the train. Some were in the center of the track, some on east side, on the dump, and some on the west side. I mean on the east and west of the rails. They were running south in front of train. The train was coming south. Engine was on south end of train. The engine had a fireman and engineer. I saw the engineer. The engine ran south to the bridge. They ran until they got to the bridge, and then.slowed up. .The horses were running across from the west side to the east side of the track, and the train hit one. I don’t know how many there were. There was a bunch of them. They were Dr. Williamson’s, I learned. I didn’t know at the time. All but one cleared the track. The train struck her and knocked her onto the bridge, and fell off. She fell on the west side of the bridge. I was still standing on the crossing south of the trestle when this happened. The train continued south. I saw and spoke to the engineer. I told him he liked to have got the whole bunch. He replied, and said: ‘They ought to keep them off.’ I was about 200 yards south of where the mare was struck at the time. The engine didn’t stop after she was struck. It came right on by me. It went just a short distance. I don’t know how many minutes or seconds it was until he spoke to me. It would not take but a minute to get to where I was. The road looking north from that bridge or trestle up to 400 or 500( yards was straight, open, clear track. I don’t know how many times the engine blew the whistle.”

From which testimony we conclude that the engineer made no effort to check the train and prevent the striking the animal.

Conclusions of Law.

1. Appellant complains of the giving of appellee’s special charge, which is as follows:

“You are instructed that a gate in a right of way fence at a private crossing is a part of the ‘fence,’ and railroads are required to keep such gates in such repair as to prevent stock of ordinary disposition from escaping through and onto defendant’s right of way through any such gates, and you are further instructed that the defendant is required 'to keep its road fences and gates in such repair as to effectually prevent stock from entering upon its roadbed and track.”

In Railway Co. v. Webb, 102 Tex. 210, 114 S. W. 1171, where stock got on the railroad track through a gate in the right of way fence at a place where the railroad was not required to place a gate, it was held that:

“The liability [of the railroad] must be held to be the same as if the track had not been fenced at all at that place.”

It is further held that:

“The question does not arise as to the duty of keeping gates closed when they have been put and kept in proper condition at places where railroad companies are required to keep them for the special benefit of the owners of inclosures through which the road passes.”

It has been held by some of our appellate courts that, when a gate was placed in the right of way fence for the benefit of the owner of the premises, the owner of stock could not recover when the gates were left open through which stock entered the right of way and was injured, unless showing negligence in the operation of the train connected with the injury of the stock. In this ease, however, the proof shows that the gate had no fastening to it and stood open all the time, and that the fence was out of repair. We think it clear that it was the duty of the railroad company to keep its fence in sufficient repair to turn stock; otherwise it would be useless for the owner to keep the gate shut. We are also of the opinion that the company should have put the gate in proper condition for use, and kept it in such condition. Gates are usually constructed of such material as to require, after a time, repairing, and such expenses should not devolve upon the owner of the premises. Without deciding what the liability of the company on the question of not keeping the gate closed is, we think the evidence shows liability of the railroad on the other features of the case.

2. We think the evidence shows liability and warranted a verdict against the appellant on the issue as to how the animal was killed, and there is no reversible error in the charge of the court in relation thereto.

The judgment is affirmed.
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author: CONLEY, C. J.

text:
    GULF, C. & S. F. RY. CO. et al. v. BRACKEN et al.
    (No. 6.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1915.)
    Appeal and Eeeok <&wkey;1071 — Teial &wkey;>388— Haemless Eeeoe — Filing op Findings and Conclusions.
    The trial court’s failure or refusal to file the statutory findings of fact and conclusions of law on seasonable request therefor by appellant, which deprives the appellant of a proper presentation of the case on appeal, is reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <&wkey;> 1071; Trial, Cent. Dig. §§ 908-911, 915, 940; Dec. Dig. <&wkey;>388.]
    Error from Hardin County Court; W. W. Dies, Judge.
    Suit by J. D. Bracken and others against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for plaintiffs against the Railway Company, and it brings error.
    Reversed, and remanded for new trial.
    W. S. Barker, of Kountze, for plaintiff in error. Hightower, Orgain & Butler, of Beaumont, for defendants in error.
   CONLEY, C. J.

This suit wa¡j instituted in the county court of Hardin county, Tex., and was one in which J. D. Bracken and others brought suit to recover of the Houston, Bast & West Texas Railway Company, and Gulf, Colorado & Santa Fé Railway Company the sum of $360 as damages to a carload of potatoes shipped from Honey Island, Hardin county, Tex., on the line of the Gulf, Colorado & Santa Fé Railway Company on October 3, 1913, to Houston, Tex., by way of Gulf, Colorado & Santa Fé Railway Company, and Houston, East & West Texas Railway Company lines; plaintiff alleging that said car contained 436 bushels of sweet potatoes, the property of plaintiffs, and that said potatoes were delivered to the railroad company in good condition, but that by reason of the failure of the railroad companies to handle the car promptly and failure to keep the car ventilated properly the-car was delayed in reaching its destination and it became heated to such an extent that the entire shipment was totally ruined and unfit for sale. The reasonable market value of said shipment was alleged to be 70 cents-per bushel.

Defendant the Houston, East & West Texas Railway Company answered, admitting the receipt of the potatoes, but denied the condition in which they were alleged to-have been loaded, and for further answer pleaded that said car was handled, after it reached its line, in a reasonably expeditious manner and upon the first available train, and that as soon as said car reached its destination defendant notified the consignee, but the consignee refused to accept said potatoes, although at the time said potatoes were in a good state of preservation, or at least not totally destroyed, many of said potatoes being sound, and that said potatoes, had they been accepted by consignee, would have been handled in a profitable way, and that after said car was refused by consignee-the defendant Houston, East & West Texas-Railway Company advertised the contents of the car for sale in the manner provided by law, and sold the potatoes and applied the-proceeds to the payment of freight and expenses of sale. The Gulf, Colbrado & Santa Fé Railway Company answered by general denial.

On trial before the court, without the aid of a jury, there, was a judgment rendered in-favor of the plaintiff and against the defendant Houston, East & West Texas Railway Company for 8305.06, and that the plaintiff take nothing against the Gulf, Colorado & Santa Fé Railway Company. The-Houston, East & West Texas Railway Company perfected its appeal from said judgment against it, and relies upon one assignment of error; that is, that the trial court erred to the prejudice of plaintiff in error,. Houston, East & West Texas Railway Company, in failing and refusing to file in writing, separately, its findings of fac-t and. conclusions of law, as requested by the appellants. There is no statement of facts in. the record.

Tile right to the findings of fact and conclusions of law is a statutory one, and a refusal by the trial court to file said findings of fact and conclusions of law, when a request is seasonably made to file the same by the plaintiff in error, and when such refusal or failure deprives the appellant of the proper presentation of the case on appeal, as is the situation in this instance, has so often been held reversible error, that we deem it sufficient to only refer to a few of the cases on that point. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Werner Stave Co. v. Smith, 120 S. W. 247; Houston Oil Co. of Texas v. Ragley-McWilliams Lbr. Co., 162 S. W. 1183.

This judgment, therefore, as to the Houston, East & West Texas Railway Company, is reversed and remanded for a new trial.
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author: RASBURY, J.

text:
    WHITE v. HOLMAN.
    (No. 7395.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 23, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. Brokers <&wkey;85 — Compensation—Actions —Evidence.
    In a broker’s action for compensation based on procuring a purchaser to whom defendant sold direct, evidence by the purchaser that he suggested as the broker had voluntarily withdrawn from the effort to sell the lands for him, he and defendant should discuss the matter, was inadmissible to show defendant’s good faith in making the sale directly, for such evidence is at most only a conclusion.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 106-115; Dec., Dig. &wkey;85J
    2. Brokers <&wkey;85 — Actions—Compensation —Evidence.
    Evidence that a landowner, after some negotiations with a purchaser first interested by a broker engaged to sell, sold the property directly to the purchaser making a deduction for defect in title, is inadmissible to show the owner’s good faith.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. <®=pS5.]
    3. Evidence <&wkey;271 — Declaration — Self-Serving Declarations.
    A letter written by an owner revoking a broker’s authority to make a sale to one whom the broker had interested in the land is a self-serving document and is inadmissible to show that the broker had withdrawn from that transaction.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. <&wkey;>271.]
    4. Brokers <&wkey;44 — Compensation—Right to.
    Where a broker interested a purchaser, the owner’s subsequent revocation of his authority to make a sale to such purchaser will not deprive the broker of his right to commissions, where the owner made a sale direct to the purchaser, for while an agency may be revoked by the principal at any time, the revocation of the agency cannot be made the means of defeating the right of the agent to commissions already earned.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. <&wkey;44.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by C. G. Holman against S. J. White. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Morris & Pope, of Dallas, for appellant. Edward P. Dougherty and L. R. Callaway, both of Dallas, for appellee.
   RASBURY, J.

Appellee sued appellant in the court below to recover $500 alleged to be the agreed commission due appellee for his services as real estate broker in consummating the sale of certain lots of land for appellant. There being no issues arising upon the pleading, it is sufficient to say that they raised the issues presented in appellant’s brief.

It was shown by the evidence practically without dispute that appellant did employ appellee to sell his lands, and that appellee, with the aid of another and co-operating agent, brought appellant and B. F. Brandenburg, who’ ultimately purchased the property, together about July 21, 1913, at which time Brandenburg made appellant an offer for his land, which appellant refused to accept. Thereafter, on September 2, 1913, Brandenburg purchased the lands from appellant at a price less than appellee was authorized to sell for, but for a price offered by Brandenburg at the time appellee first brought the parties together. This sale was not consummated because of appellant’s refusal to cure certain defects in the title. Subsequently, however, and on November 3, 1913, appellant did convey the lands to Brandenburg for the price agreed to by Brandenburg when appellee first brought the parties together.

At trial certain special issues of fact were submitted to the jury who, in response thereto, found that appellant did employ appellee to sell his lands, agreeing to pay him $500 commissions in case of sale, and that a sale was effected by the efforts; of appellee, who was the procuring and efficient cause of the sale. The jury also found that appellee did not, as claimed by appellant, voluntarily abandon his negotiations with Brandenburg when the parties failed to agree at the first meeting. Upon the jury’s findings judgment was entered for appellee, from which this appeal is' perfected.

The first issue presented is the action of the court in refusing to permit the witness, Brandenburg, the purchaser of the lands, to detail a conversation between himself and the appellant, which occurred about September X, 1913. Brandenburg would have testified that he accidentally met appellant at the courthouse about September 1, 1913, and suggested to him that inasmuch as appellee had voluntarily withdrawn from the effort to sell appellant’s lands to him, Brandenburg, and had no further connection therewith, he desired to discuss the matter with appellant and see if they could trade; that he did discuss the matter with appellant and finally offered him $11,000, which appellant accepted the following day. It is urged hy counsel that Brandenburg’s statement was admissible as bearing upon appellant’s good faith in the transaction and to disprove the charge that appellant had attempted to defraud appellee out of his commissions. The contention, we think, is clearly untenable. The assumption by the witness Brandenburg that appellee had voluntarily withdrawn from negotiations with him, Brandenburg, and hence had no further connection with the sale of the lands was pure conclusion. Even though appellant, in selling the lands to Brandenburg in good faith, believed at the time that all negotiations with Brandenburg had been abandoned by appellee, and that he had the right to sell the lands free of liability to appellee, it is equally clear and certain that he could not establish that good faith by the conclusion on the part of Brandenburg that appellee had in fact so severed his connection with the negotiations. That was a matter to be determined by the jury upon consideration of the evidence disclosing what the parties themselves said and did.

Neither was the testimony of appellant, also excluded by the court, competent to show appellant’s good faith in assuming that appellee had voluntarily withdrawn from the negotiations with Brandenburg. Had he been permitted to do so appellant would have testified in effect that the trade he made with Brandenbiurg September 1, 1913, was canceled October 27, 1913, and that in two or three days thereafter he applied to Brandenburg for a loan thereon, and while said application was pending Brandenburg proposed again to buy the lands at the original offer of $11,000, if appellant would allow $250 to cover the expense of curing certain defects in the title, and that in a day or so the matter was closed by appellant, allowing $125 for such expense, whereupon deed was executed and the land conveyed at once. This testimony, like that of Brandenburg, was incompetent to establish appellant’s good faith. He may have, and probably did, in good faith believe that appellee had voluntarily withdrawn from the negotiations', and so believing in good faith sold to Brandenburg. That good faith, however, clearly cannot, as against appellee, be established by showing that he did in fact sell the property. The act of selling is not evidence of good faith. Whether appellee abandoned the negotiations for the sale of the lands to Brandenburg is dependent, not upon what appellant and Brandenburg subsequently did in' reference to such lands, but upon the intention of the parties to be deduced by the jury from their conduct and expressions preceding such abandonment.

It is next urged that the court erred in not admitting in evidence a letter written by appellant to appellee withdrawing appellant’s lands from appellee’s hands and severing all negotiations in connection with the sale thereof to Brandenburg, and in not rendering judgment for appellant upon the finding of the jury that appellant did, on August 9, 1913, declare all negotiations with reference to the sale of his lands to Brandenburg at an end. In reference to the admission of the letter, aside from the fact that it is clearly self-serving and hence inadmissible, the jury found all that could have been properly proven by the letter and if admissible, which we do not concede, its exclusion was harmless in view of the finding of the jury. Nor did the finding of the jury entitle appellant to judgment, since the jury also found, in effect, that appellee did not abandon the negotiations with Brandenburg. The two findings amount to no more than that appellant attempted to cancel the negotiations pending with Brandenburg, and appellee declined to agree to such cancellation, leaving it finally and properly for the jury to say from all the facts and circumstances developed, who was the efficient and procuring cause of the sale. While it is correct to say, in connection with the issue, as does counsel for appellant, that agency may be revoked by the principal at any time, it is equally true that revocation of agency may not be the means of defeating the agent of commissions earned prior to such revocation.

There are a number of other assignments of error which we have carefully considered, but which we omit a discussion of for the reason that under the unchallenged special findings of the jury and under the rule announced in Bellis v. Hann & Kendall, 157 S. W. 427, and Martin v. Jeffries, 172 S. W. 148, they become immaterial, and fail to present reversible error.

The judgment is affirmed.
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