text:
    KILPATRICK v. STATE.
    (No. 4160.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Homicide <@=>295(2) — Provoking Difficulty — Issue.
    Pacts of homicide case held not to raise the question of provoking a difficulty, so as to authorize a charge thereon for the state.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 608; Dec. Dig. >@=>295(2).]
    2. Criminal Law <@=>770(2) — Instructions— Counter Proposition.
    Where the question of provoking a difficulty is in the case and forms an issue, defendant is entitled to an affirmative charge, presenting the counter proposition to that given for the state.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. <@=>770(2).]
    8. Homicide <@=>295(1) — Provoking Difficulty — Issue.
    Provoking a difficulty is never in the case, except where self-defense is also an issue, being used to eliminate defendant’s theory of the difficulty on that issue.
    [Ed. Note. — Por other eases, see Homicide, Cent. Dig. §§ 606, 607; Dec. Dig. <@=>295(1).]
    4. Homicide <@=>298 — Right to Arrest — Instructions.
    In place of a general charge, a charge, stating under what circumstances, applicable to the facts of the case, defendant in homicide, as an officer, would have a right to arrest deceased, should be given.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 612; Dec. Dig. <@=>298.]
    5. Witnesses <@=>16 — Documents—Order for Production.
    Por production of a telegram sent immediately after the homicide, by witnesses for the state, contradictory of their testimony, and so impeaching, an order should be made; it not being obtainable otherwise.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 19-27; Dee. Dig. <@=>16.]
    Appeal from District Court, Presidio County; P. R. Price, Judge.
    J. J. Kilpatrick, Jr., was convicted, and appeals.
    Reversed and remanded.
    C. E. Mead and H. H. Kilpatrick, both of Marfa, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was allotted 10 years confinement in the penitentiary for murder.

There are two theories, in direct conflict as to the killing and the immediate facts. This killing occurred at Candelaria in what is known as the “Big Bend country,” about 60 miles from Marfa, near the Rio Grande river. In this little village, among other things, is a store, post office, saloon, and pool hall. The father of appellant lived in the little town, as did appellant, but appellant spent most of his time on his father’s ranch some miles out in the country. On the evening preceding the killing at night appellant came in from his father’s ranch to spend the night at his father’s house. After supper, about half after 8 or 9 o’clock, appellant, who-was constable of that precinct, walked down to the pool hall. In this hall were four soldiers and a number of Mexicans. Three of the soldiers and one of the Mexicans were playing a game of pool. Quite a number of them were- drinking. One of the soldiers, whose name was Kemp, but who was not engaged in the game of pool, was decidedly intoxicated. The state’s case is made mainly by the evidence of two of the soldiers, Hodges and Hardy,’ Kemp not being used as a witness. They both were engaged in the game of pool, and testified that as appellant entered the pool hall he came with his pistol drawn and exclaimed, “Hey, hey!” and began shooting,' killing one of the soldiers whose name was Keyser.

Appellant’s evidence, through several witnesses, was to the effect that when he went into the pool hall he took a seat on a bench which was by the side of the wall, and had been sitting there something like 20 minutes, observing the game, and had not spoken to anyone. While sitting there the soldier Kemp drew his pistol, and chased one or more of the Mexicans out of the pool hall, into the street; that he was boisterous and used vicious and violent language, and when he came back into the hall he passed appellant, or went where he was and cursed him, using the same character of boisterous language. Appellant, as Kemp turned towards the pool table and went around one end of it, got up and went to him and admonished him that he must keep quiet and cease his disturbances;’ that as he said that, Kemp fired at him; and that appellant immediately returned the fire, firing three shots. None of these struck Kemp, but one or two of them struck the soldier Keyser, killing him. The killing of Keyser was claimed to have been accidental. The shots were fired at Kemp, and not Keyser. As before stated, appellant was constable of that precinct. This is a sufficient statement to bring in review the charge of the court with reference to provoking a difficulty.

We are of opinion that these facts do not suggest or raise the question of provoking a difficulty. It cannot be claimed or asserted that if the state’s theory is right, appellant provoked the difficulty, for under that theory he came in the pool hall with his pistol drawn, and, after making the exclamation imputed to him, began shooting, Keyser being killed. It would be useless to discuss the question of provoking a difficulty under that state of facts. The theory of the defendant certainly does not present that issue. If a difficulty was provoked at all, it was by Kemp, who with a drawn pistol chased a Mexican out of the house, and, returning, abused appellant, whereupon, appellant admonishing him to keep quiet, he fired upon appellant. It would be of no use or benefit to discuss this question. From no viewpoint of this record is provoking a difficulty in the case. If upon another trial the facts are developed as come in this record, the court will not charge upon this proposition' of the law.

There is another counter proposition growing out of this presented by appellant, which was declined by the court; that is, where the question of provoking a difficulty vel non is in the case, that, having charged provoking a difficulty for the state, a counter proposition to this for the defendant should have been given. It is unnecessary -to discuss that question here, because provoking a difficulty is not shown; but wherever that question is in the case and it forms an issue, the defendant is always entitled to an affirmative charge, presenting the counter proposition to that given for the state. Provoking a difficulty is used where self-defense is an issue to eliminate appellant’s theory of the difficulty on that issue. The general proposition may be again stated and asserted that provoking a difficulty is never in the case except where self-defense is also an issue.

The court in a general way submitted the question of the right of appellant as an officer to arrest Kemp, and his right to resist an attempt made by Kemp to kill or inflict serious bodily injury upon him. The charge was rather general. Appellant asked a special instruction, submitting this theory affirmatively applicable to the facts in which was embodied the acts and conduct of which Kemp was guilty at the time of the difficulty for which the appellant was authorized or required to arrest him. The court’s charge, as before stated, was general; that asked by appellant and refused by the court specially pointed out the legal reason why appellant was authorized to arrest Kemp: First, Kemp had made several assaults upon persons present by pointing his pistol at them in a threatening manner; second, displaying a pistol in a public place, same being a deadly weapon; third, by cursing and abusing persons in appellant’s presence in a manner reasonably calculated to provoke a breach of the peace; and, fourth, by using obscene language, cursing and swearing in a public place in a manner reasonably calculated to disturb the inhabitants of such place. We are of opinion that upon another trial, with reference to the right of an officer to arrest under the facts of this case, the jury should be told under what circumstances appellant would be authorized to make an arrest. These matters here all occurred in his presence and within a few feet of him. The law imposes the duty upon him to arrest a party under such circumstances, and to use all necessary means to accomplish that in case of resistance. It is not here intended to discuss these matters at length. Upon another trial there should be an instruction given the jury to the effect that under these circumstances appellant would have a right to make the arrest.

There is another question which should cause a reversal of this judgment. Hodges and Hardy testified for the state as hereinbefore mentioned. On the. night just after the killing they, together with Sergeant Kraft and perhaps one or two others, signed a statement which was sent in a telegram to army headquarters at Marfa, in which said telegram they stated that Keyser was killed by a Mexican. On the trial they testified that Keyser was killed by the appellant. The bill is quite lengthy. A copy of this telegram was in possession of the district attorney, who refused to let appellant’s counsel read it, on the ground that it was his private paper. The telegraph officer was served with a subpoena duces tecum, and brought the telegram in court. He refused to produce the paper, or let appellant’s counsel have it, on the ground that he was interdicted by the War Department from giving out the contents or testifying about it without an order of court, and the court refused to give the order. These matters are all certified. The court should have granted this order, and required the production of the telegram. It was directly contradictory of the testimony of the two soldiers, and, to say the least of it, it was impeaching.. Upon another trial this testimony will be admitted.

There are other matters in the record, but from what has been said will hardly arise upon another trial.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      <&=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes-


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    KLOPNER v. STATE.
    (No. 4272.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Infants <®=»18 — Delinquents — Appeal — Judgments Appealable.
    No appeal lies to the Court of Criminal Appeals from an order adjudging defendant a delinquent child, and ordering him conveyed to the State Institute for the Training of Juveniles; it not being a conviction of a criminal offense.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. <S=>18.]

      Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Lionel Klopner was adjudged a delinquent child, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was tried before Hon. Jesse M. Brown, county judge of Tar-rant county, under an information charging him with being a delinquent child. This is not a criminal offense, and no appeal lies to this court from an order adjudging him a delinquent child, and ordering him conveyed to the State Institute for the Training of Juveniles. Ex parte Bartee, 174 S. W. 1057.

The court being without jurisdiction to entertain this appeal, it is ordered dismissed.
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LYONS v. STATE.
    (No. 4266.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Criminal Law <@=>1144(8) — Appeal — Swearing Jury — Statute.
    Under Code Cr. Proc. 1895, art. 904, as amended by Acts 25th Leg. e. 12, providing that on appeal the court must conclusively presume that the jury was sworn, unless such fact was made an issue below, where no such issue was raised during the trial, and the judgment recited that the court heard evidence on such issue on the motion for new trial, and determined it against the defendant, and the evidence was not presented, the court could not say that it affirmatively appeared by the record that the jury was not sworn.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2758-2760, 2901, 3023. 3024; Dec. Dig. <@=>1144(8); Jury, Cent. Dig. §§ 306, 330, 347, 390.]
    2. Jury <@=>148(3) — Oath.
    Where a jury was sworn to try a case, and the case was dismissed, and defendant in the next case consented to go to trial before the same jury, the jury was duly sworn for the second case. ,
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 643; Dec. Dig. <@=>148(3).]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Jim Lyons was convicted of perjury, and he appeals.
    Affirmed.
    J. M. Blankenship, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

No statement of facts accompanies the record, but in the motion for a new trial appellant contends that the jury was not sworn to try this case. In the affidavits he states the facts to be: That one case was called against appellant, and a jury was duly impaneled and sworn; that the district attorney then dismissed that case, and the trial of this case was proceeded with before the same jury, without the jury being again sworn. The judgment recites that the jury was duly impaneled and sworn, and the first time this question is attempted to be raised is after verdict in the motion for new trial. Article 904, Code Cr. Proc., as amended by Acts 25th Leg. c. 12, provides that on appeal we must conclusively presume" that the jury was sworn, unless such fact was made an issue in the court below. Certainly no such issue was raised during the trial; and if it can be said to be raised by these affidavits, the judgment of the court recites that he heard evidence on that issue and determined it against appellant’s contention. Appellant does not present that evidence to us, and we certainly cannot under such circumstances adjudge “that it affirmatively appears by the record” that the jury was not sworn.

We are further of the opinion that when the jury was sworn in the first instance, that case dismissed, and when appellant consented to go to trial in this case before the same jury which had been duly sworn, it was a substantial compliance with the statute.

The judgment is affirmed.
      <S=For other cases'see same topic and KEY-NUMBER in all Key-Numbered Digests and lndexes


author: PRENDERGAST, P. J.

text:
    SPENCE v. STATE.
    (No. 4186.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Homicide <§=>167(1) — Evidence—Threats by Accused.
    Threats by accused, broad enough to include one against the life of deceased, held admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 332, 333; Dec. Dig. <g=>167(1).]
    2. Criminal Law <@=>1036(2) — Appeal — Objection Not Raised at Trial.
    There was no error because of remoteness of time of the incident admitted as affecting defendant’s credibility, the question of time not being raised at the trial, and being known by the judge only on the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2640; Dec. Dig. <@=>1036(2).]
    3. Criminal Law <@=>1169(6) — Harmless Error — Rejection oe Evidence.
    Any error in refusing to admit under Code Cr. Proc. 1911, art. 718, evidence offered out of order was harmless, its sole purpose being to support testimony to reduce the homicide to manslaughter, which, as shown by the verdict, was believed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3143; Dec. Dig. <@=>1169(6).]
    Appeal from District Court, Morris County; J. A. Ward, Judge,
    Milton Spence was convicted, and appeals.
    Affirmed.
    Henderson & Bolin, of Daingerfield, for appellant. J. H. Beavers, of Winnsboro, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was tried for murder, and found guilty of manslaughter with the highest penalty assessed.

The testimony from the state’s side especially tended very strongly to show that appellant was guilty of murder in killing O. A. Knieff, who was a constable at the time and had been for some months. The theory and contention of the state was — and there was abundant evidence in the record tending to that effect:

That appellant was a “bootlegger,” selling intoxicating liquor in prohibition territory, and had been for some time. That Joe Davis, the justice of the peace in the small town where the killing occurred, and said Knieff, constable, were on his trail, seeking to procure evidence to prosecute him, and that they had, on more than one occasion recently before the killing, had parties before them for that purpose. ' Growing out of their investigations and seeking evidence to prosecute and convict him, the constable had that very day, before the killing, about 8 o’clock that night, arrested him on a complaint and warrant, charging him with the theft of some whisky, and that three or four weeks before that, when they began one of their said investigations, appellant came up into the room where they were, and that the deceased searched him at that time for arms. That on that occasion appellant told the constable and justice of the peace: “If you don’t let me alone and let my business alone, I will kill you both.” That on another occasion, about three weeks before the killing, appellant told the justice of the peace:

“You-all may catch me selling whisky. If you are going to adopt the plan you started in on, I guess you will, because you will find somebody that won’t tell a lie for me. But whenever you do, I tell you right now you are going to have a fight. I will kill both of you.”

That on another occasion, about a week before the killing, deceased had arrested a ■Syrian for unlawfully peddling without a license, and appellant in talking about that said that if deceased ever bothered him or meddled with him, or something like that, he would kill him. Another witness testified that the day before the killing he presented an account against appellant for payment, and appellant told him that “Jack” had been pushing him so in his business he did not have any money right then but that he would pay it the next day; that if they did not let up on him, business was going to pick up. Deceased was called Jack. Another witness swore that immediately after appellant fired the shot which killed the deceased, he said, “I told you I would kill you.” Another witness swore that appellant, when leaving the scene of the killing, said he was getting tired of those G — d d-d s-s of b-s running over him. All the above testimony was given without any objection by appellant.

Over his objections, the court permitted J. R. Hampton to testify that in March before the killing on October 2d, following, he met appellant on the train coming from Ft. Worth; that appellant asked him to get some packages he had in the vestibule. There were three of them, two large ones and one small one, “and he said it was whisky and he wanted to take it out on the side next to the hotel when we got down there. He said he was selling whisky, and the first man that interfered with him, he was going to kill him.” And, over his objections, the court also permitted J. R. Bogard to testify that he had a conversation with appellant on the train about the middle of June before the killing; that appellant had a sack in his hands with some bottles of beer in it, so he stated to him and remarked:

“They sell it pretty open here. We can’t do that in Naples.”

And further:

“Every one knows my business. I don’t hide it. I gamble and sell whisky for a living, but I will shoot the heart out of the s-n of a b-h that turns me in.”

Over appellant’s objections, the court permitted W. F. Smith to testify that about a week or 10 days before the killing appellant was in his barber shop getting shaved, and remarked that he was going to quit “bootlegging,” and the witness replied, “I am mighty proud of it;” that they talked on a minute or two, and he said:

“By G-d, Joe Davis and Jack Knieff wasn’t going- to make him quit; he was going to do it anyhow.”

Appellant’s objections to the testimony of these witnesses was that it was irrelevant, immaterial, and too remote and not a threat against the life of deceased. We think this testimony was admissible. We have had occasion repeatedly and recently to discuss the admissibility of such testimony, and to collate the authorities thereon and state and discuss the rules applicable in Howe v. State, 177 S. W. 497, and Hiles v. State, 73 Tex. Cr. R. 20, 163 S. W. 717. We deem it unnecessary to again state or discuss them, or cite these authorities.

Appellant testified on cross-examination in response to the district attorney’s questions that he had been charged with assault to murder when he shot a fellow down in Cass county; that he was then under indictment, charged with attempt to rob and also for the felony of “bootlegging,” selling whisky. He had pleaded for a suspension of sentence. At the time he testified that when he lived in Cass county he.shot a fellow down there, and was charged with assault to murder, his attorney objected, because it was immaterial and irrelévant and calculated to prejudice the jury against him. The court overruled his objections, and admitted the testimony solely as affecting his credibility as a witness. The court states that at the time of said objections and when said testimony was admitted, the question of the time when that occurred did not arise, and the court was not made aware that that incident oc-eurred some 12 years before until the motion for a new trial was filed, and that no objection at the time was made because it was too remote. Under the circumstances, this bill presents no error.

Appellant’s wife swore that some short time, 20 or 30 minutes, before the killing the deceased came to her residence, which was right in the town, and insulted her by, in substance, then asking her to have sexual intercourse with him; that in a few minutes after this, her husband came home, when she told him of it. He testified that his wife so told him, and that he at once got his gun, hunted deceased down, and shot and killed him because of this insult to her. As stated, the jury acquitted him of murder, and found him guilty of manslaughter. The sole ground on which he was convicted of manslaughter was this claimed insult to his wife.- One of the state’s witnesses in rebuttal on cross-examination testified that deceased’s reputation at the time he was killed, and for some time before, for chastity and virtue, was bad. The state introduced no testimony at all on the point. The order of testimony was, first, the state introduced its main witnesses to establish the offense and rested. Thereupon the appellant introduced his testimony and rested. The state then introduced its rebuttal testimony and rested. After this, appellant produced three witnesses, who would have testified that they knew the general reputation of deceased for virtue and chastity, and that it was bad. The state objected to this testimony because it was not in rebuttal of any the state had introduced. It was not in rebuttal, as claimed by the state. The statute (article 718, O. G. P.), however, is that the court shall'allow testimony to be introduced at any time before the argument is concluded if it appear that it is necessary to a due administration of justice. This court has repeatedly held under this statute that large discretion is allowed the trial judge in admitting, or refusing to admit, testimony not in rebuttal, after all other evidence is in, but before the argument is concluded, and the trial court must necessarily have large discretion in the matter. If appellant had been convicted of murder, we would reverse the judgment, because this testimony was excluded, but as the testimony, if admitted, would have gone solely to support, in a measure, the testimony of appellant’s wife of the claimed insult to her by deceased, and as the jury believed her testimony, and thereby appellant was acquitted of murder and found guilty of only manslaughter, and all the testimony, without any doubt, would show him guilty of manslaughter, no injury occurred to him by reason of the court’s excluding such evidence, and the court’s ruling therefore became harmless.

There is no other question in the case, and the judgment is affirmed.


text:
    FERGUSON v. STATE.
    (No. 4090.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.
    On Motion for Rehearing, Nov. 15, 1916.)
    1. Indictment and Information <@=^128 — Joinder of Offenses in One Count.
    An indictment for aiding and abetting the cashier of a state bank in violating Pen. Code 1911, art. 523, which declares guilty of felony a bank officer who embezzles or willfully misapplies any of its funds, held to be in one count only.
    [Ed. Note. — For^other cases, see Indictment and Information, Cent. Dig. §§ 403-413; Dec. Dig. <§=3128.]
    2. Indictment and Information <§=> 137(6'— Certainty — Grounds for Quashing.
    An indictment for aiding and abetting the cashier of a bank in violating Pen. Code 1911, art. 523, held open to motion to quash, on the ground that its language and allegations are confused, indefinite, and unintelligible.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 486; Dec. Dig. <®=>137(6).]
    3. Indictment and Information <@=xol25(27) —Separate Counts — Separate Offenses.
    Pen. Code 1911, art. 523, declaring guilty of felony an officer of a state bank who embezzles, abstracts, or willfully misapplies its funds, prescribes three separate and distinct offenses, which should be charged in separate counts, and not three ways in which a given offense can be committed, which may be alleged con-junctively.
    [Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. <®=»125(27).]
    4. Embezzlement <&=11(1) — Offenses—“Embezzle’ ’ — ‘ ‘Abstract’ ’ — >Villfully “Misapply.”
    Within Pen. Code 1911, art. 523, declaring guilty of a felony an officer or clerk of a state bank who “embezzles, abstracts, or willfully misapplies” its funds, “embezzle” refers to acts done for the benefit of the actor as against the bank, “misapply” covers acts having no relation to pecuniary profit or advantage to the doer, while “abstract” means only to take and withdraw from the possession and .control of the bank; and while “embezzlement” may include the offenses of abstraction and willful misapplication, either of those offenses may be committed without embezzlement.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 9; Dec. Dig. <®=>11(1).
    For other definitions, see Words and Phrases, ■First and Second Series, Abstract; Embezzle; Misapply.]
    5. Indictment and Information <S=>138 — Motion to Quash — Grounds.
    That the offense is not set forth “in plain and intelligible words,” as required by Code Cr. Proc. 1911, art. 451, subd. 7, by article 576 made ground for motion to quash the indictment, is embraced in a motion to quash because “the language and allegations thereof are confused, indefinite, and unintelligible.”
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. <S=»138.]
    6. Indictment and Information <@=>138 — Motion to QuAsn — Grounds.
    The ground of motion to quash an indictment, that it does not charge any offense against the laws of the state, is sufficient within Code Cr. Proc. 1911, art. 575, providing that an exception of substance to an indictment is that it does not appear from its face that an offense against the law was committed by defendant.
    . [Ed. Note.- — Eor other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. <S=s>138j
    7. Criminal Law <©=^1133 — Appeal—Attacking Indictment.
    Validity of an indictment as to substance may be attacked at any time, even for the first time on motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. ‘<S==>1133.]
    8. Indictment and Information @=»196(7)— Ground for Quashing — Duplicity.
    That an indictment is duplicitous on its face is a defect of substance, ground for quashing which can be raised at any time.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 635; Dec. Dig. <®=»196(7).]
    Appeal from District Court, Cherokee County ; L. D. Guinn, Judge.
    H. M. Ferguson was convicted, and appeals.
    Reversed and dismissed.
    Perkins & Perkins and Guinn & Guinn, all of Rusk, and Wynne, Wynne & Gilmore, of Wills Point, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of “aiding- and abetting in embezzlement,” as stated by the judgment. It is claimed by both sides that the indictment was preferred under article 523, P. C., which as to the offenses charged is:

“Every president, cashier, director, teller, clerk or agent of any state bank, • * * incorporated under the laws of Texas; who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of such state bank, * * * with intent in either case to defraud such state bank, or any other corporation, body politic or any individual, person, firm or association, * * * and every person who, with like intent, aids or abets any officer, clerk or agent in any violation of this article, shall be deemed guilty of a felony, and shall, upon conviction, be imprisoned in the state penitentiary for a term of not less than five years nor more than ten. years.”

As will be seen from the indictment, it has some indications of having been preferred under article 96, P. 0., also’.

The appellant contends that the indictment is in two count's; the state, that it is in one only. Omitting the usual commencement about the organization of the grand jury and the usual concluding part, the indictment is:

“That at the time and all the times herein alleged the Guaranty State Bank of Mt. Selman, at Mt. Selman, Tex., was a state banking association, which had been theretofore duly and legally incorporated, created, organized, and established under and by virtue of the acts of the Legislature of the state of Texas and under the laws of said state in such cases made and provided, and was then and there existing and doing a banking business as a state bank of deposit and discount at the town of Mt. Selman, state of Texas, county of Cherokee, and at all times herein alleged, one A. E. Burns was the cashier of said the Guaranty State Bank of Mt. Selman. And that heretofore, to wit, on or about the 15th day of December, A. D. 1915, one H. W. Ferguson did then and there knowingly, _ willfully, fraudulently, and unlawfully and with the intent in Mm, the said H. W. Ferguson, to injure and defraud the said state bank, aid and abet the said A. E. Burns, he being then and there cashier as aforesaid, then and there unlawfully and fraudulently secrete and take, and to embezzle, abstract and willfully misapply certain of the moneys, funds, and credits of the said state bank for the use, benefit, and advantage of him, the said H. W. Ferguson, and for the use, benefit, and advantage of a person and persons other than the said state bank, the name and names of said person and persons being, to the grand jurors unknown, to wit, the sum of $5,000 in current money of the United States of the value of $5,000 and the funds and credits of the value of $5,000, then and there belonging to and being the property of the said state bank without the knowledge and consent of said bank and its board of directors; that is to say the said A. E. Burns heretofore, to wit, on the day and year last aforesaid, in said county and state being then and there 'cashier as aforesaid, aided and abetted by the said H. W. Ferguson, did then and there knowingly, unlawfully, and fraudulently, and with the intent to injure and defraud said state bank, unlawfully and fraudulently secrete and take and willfully embezzle, abstract, and misapply certain of the moneys, funds, and credits, of the said state bank, amounting to the sum of $5,000 and of the value of $5,000, a more particular description of which is to the grand jurors unknown, and cannot be given by the grand jury, in the manner and by the means to the grand jurors unknown, and the said A. E. Burns, by virtue of his cashiership as aforesaid, was the receiver and controller of and having charge of the moneys, funds, and credits of the said the Guaranty State Bank of Mt. Selman, and he, the said A. E. Burns, had received, and there had come into his hands and was then and there in his possession as such cashier, by virtue of the power of control, direction, and management said A. E. Burns had as cashier, as aforesaid, over the moneys, funds, and credits of said banking association, did then and ’ there willfully, fraudulently, and unlawfully secrete and take and embezzle, abstract, and willfully misapply moneys, funds, and credits belonging to said bank, to wit, amounting to the sum of $5,000 current money of the United States of America and the funds and credits of said bank to the value of and to the amount of $5,000, a better description of which is to the grand jurors unknown, and cannot be given by the grand jury, which sum of moneys, funds, and credits he, the said A. E. Burns, did then and there unlawfully and fraudulently secrete and take from and out of the moneys, funds, and credits then and there belonging to and being the property of said state bank, without the knowledge and consent of said state bank and its board of directors, said sum of $5,000, a more particular description of which said moneys, funds, and credits so embezzled, abstracted, and willfully misapplied being to the grand jurors unknown, and same were taken without lawful authority, as they, the said H. W. Ferguson and A. E. Burns, and each of them, then and there well knew, and the said sum was then and there willfully, wrongfully, and unlawfully appropriated and converted to the use, benefit, and advantage of the said H. W. Ferguson and of the said A. E. Burns, and each of them, and for the use, benefit, and advantage of a person and persons other than the said state bank, the name and names of said person and persons to this grand jury unknown and the said H. W. Ferguson knowingly, willfully, fraudulently, and unlawfully aided and abetted the said A. E. Burns, Cashier as aforesaid, therein with the intent in and of him, the said H. W. Ferguson, to injure and defraud said state bank.”

Wte have carefully and repeatedly studied this indictment, and conclude that it is in one count only. The appellant made a motion to quash it on various grounds, one being “because the language and allegations thereof are confused, indefinite, and unintelligible.” We think this ground of the motion is good, and should have been sustained. If it can be considered to charge any offense at all, it in one count charges three separate and distinct offenses, to wit: (1) Aiding and abetting embezzlement; (2)- aiding and abetting abstracting; and (3) aiding and abetting, willfully misapplying, the public moneys, funds, etc., of said state bank.

We have not quoted all of the statute (article 523), but have omitted that part of it which has no application herein. The parts omitted also prescribe some separate and distinct offenses in addition to those we have mentioned above. This statute, and the indictment under it, does not come within the well-settled principle that when a statute prescribes two or more ways that a given offense can be committed, the indictment can allege all the ways conjunctively and sustain a conviction if either is properly proven, but, instead, this statute does not prescribe three separate and distinct ways of committing any given offense, but prescribes three separate and distinct offenses. Hence we think the indictment is also fatally defective, because in one count it charges three separate and distinct offenses, if, as stated, it charges any offense at all.

In criminal pleading, it is always permissible and commendable, when necessary or proper to charge an accused with the offense in separate counts in order to meet the proof as it may develop. Under this statute, each and every separate and distinct act of embezzlement, or of abstracting, or of willfully misapplying, is a separate and distinct offense, and can be preferred, and probably should be, in separate and distinct indictments. However, we see no necessity in the disposition we make of this case of discussing anything further in connection with the law or the indictment.

There is one matter, however, we will call attention to, and that is, the statement of facts embraces questions and answers, objections and arguments, remarks of the court and many other things it ought not to contain. If we had ever reáched it herein, doubtless if the Assistant Attorney General had made a,motion to strike out the statement of facts and not consider it because of the way it was made up, in all probability we would have sustained his motion. The statute on this subject and the many decisions are so clear and distinct to the effect that such a statement of facts will be struck out and not considered, but will not cite them again now.

The judgment is reversed, and the cause dismissed.

On Motion for Rehearing.

The state’s able attorneys who were employed specially to prosecute this case have filed a very elaborate and lengthy argument and brief, urging vigorously and forcibly that this court erred in holding the indictment herein defective. They invoke several well-established doctrines as applicable herein, such as surplusage, and that an indictment can properly allege conjunctively all the ways, when there are more than one, in which a given offense may be committed, and that proof of either will sustain a conviction, and some others, citing and quoting very extensively many decisions of this court on these points. All these doctrines were thoroughly considered before the original opinion was prepared and handed down, and, upon the most mature deliberation, we concluded none of them had any application to this case. We deem it unnecessary to discuss any of these doctrines.

There can be no question but that if the statute under which this prosecution was had had prescribed only one offense and three or more ways in which it might have been committed, the indictment could legally and properly have charged conjunctively in one count the offense as committed in all these ways; but, as held in the original opinion, said statute prescribes three separate and distinct offenses, and not three ways of committing one offense. Said statute (P. O. art. 523), copied in the original opinion, was taken literally as applicable to our state banks from article 5209 of the United States Revised Statutes (U. S. Comp. St. 1913, § 9772), as applicable to national banks. The federal courts, in construing that statute, have expressly held that it provides for at least three separate and distinct offenses, to wit: (1) Embezzlement; (2) abstraction; and (3) willful misapplication, of any of the moneys, funds, or credits of such bank. U. S. v. Lee (C. C.) 12 Fed. 816, and many other cases from the federal courts to the same effect. After the most thorough search, we have been unable to find any decision of any federal court under that statute which holds, or intimates, that it prescribes but one offense and three ways of committing it.

Each of the words, “embezzles,” abstracts,” or willfully “misapplies” must be given effect. The word “misapply” was intended to include acts nor covered by the previous words “embezzle” or “abstract.” To give “misapply” the same meaning as the word “embezzle” is to eliminate a word from the statute. This cannot be done. U. S. v. Fish (C. C.) 24 Fed. 585-591. The terms “embezzlement” and “misapplication” used with reference to the funds of a bank are not convertible terms. Jewett v. U. S., 100 Fed. 832-840, 41 C. C. A. 88, 53 L. R. A. 568. The word “embezzle” refers to acts done for the benefit of the actor as against the bank, while the word “misapply” covers acts having no relation to pecuniary profit or advantage to the doer thereof. U. S. v. Taintor, 28 Fed. Cas. 7-9. “Abstract,” as used in the statute, is a word of simple, popular meaning, without ambiguity. It means to take or withdraw from; so that to “abstract” the funds of a bank, or a portion of them, is to take and withdraw from the possession and control of the bank moneys, etc., alleged to be so abstracted. It has but one meaning, being that which is attached to it in its ordinary popular sense. U. S. v. Northway, 120 U. S. 327, 7 Sup. Ct. 580, 30 L. Ed. 664; U. S. v. Harper (C. C.) 33 Fed. 479. Embezzlement under this statute involves two essential elements: (1) A breach of duty or trust with respect to the moneys, etc., of the bank embezzled, which must have been lawfully in the custody or possession of the principal by virtue of his office or employment, although such possession need not have been exclusive of that of other officers, clerks, or agents; and (2) wrongful appropriation of such moneys, etc., to his own use, with intent to injure or defraud the bank or others. Embezzlement may include the offenses of abstraction and willful misappropriation, but either of the latter offenses may be committed without embezzlement. 3 Michie’s Banks and Banking, p. 1932; U. S. v. Breese (D. C.) 131 Fed. 915; U. S. v. Youtsey (D. C.) 91 Fed. 864. An indictment for embezzlement must allege the moneys or funds were intrusted to the possession of the defendant, but an indictment for abstraction or misapplication need not. 3 Michie’s Banks and Banking, p. 1948; U. S. v. Northway, supra; U. S. v. Johnson, Fed. Cas. No. 15,-483. “Misappropriation” means wrong appropriation ; to turn to a wrong purpose. Hagerty v. Badkin, 72 N. J. Eq. 473, 66 Atl. 424. The cases from the various federal circuit Courts of Appeal are not in harmony. There perhaps is some conflict between them. We have cited above those which we think are correct and in point.’

The cases of Green v. State, 66 Tex. Cr. R. 452, 147 S. W. 593, and Ferrell v. State, 68 Tex. Cr. R. 487, 152 S. W. 901, particularly relied upon by the state, as well as other cases cited, we think, have no application to this ease. In all those cases, we were discussing an indictment under a statute which did not make two or more separate and distinct offenses, but the two or more methods of committing one offense, and all these cases, properly considered, clearly make that distinction.

Our statute, in various provisions, prescribes what allegations in an indictment shall be deemed sufficient. Among others, article 451, C. C. P., subd. 7, states: “The offense must be set forth in plain and intelligible words.” Also article 576, C. C. P., expressly authorizes an accused to make a motion to quash the indictment for the want of any of the requisites prescribed by said article 451. One ground of the motion to quash this indictment was because “the language of the allegations thereof are confused, indefinite, and unintelligible.” This ground did not follow the exact language in the statute that the offense was not set forth “in plain and intelligible words,” but we think, without question, it embraced, and was intended to embrace, that provision of the statute, and not only authorized, but required, the court to pass upon it, and we are still of the opinion that the allegations of the indictment were so confused, indefinite, and unintelligible as not to charge the offense in plain and intelligible words. That alone would require that this case should be reversed and dismissed, as we held in the original opinion.

Another ground of appellant’s motion to quash said indictment was that it does not charge any offense against the laws of the state. The statute (article 575, C. G. P.) expressly provides that an exception of substance to an indictment is that it does not appear from the face of it that an offense against the law was committed by the defendant. We are also of the opinion that said ground to quash it sufficiently embraced and raised this question of the sufficiency of the indictment under said article of the statute, and this also not only authorized, but required, the lower court to pass upon the indictment on that ground. The lower court did so, and overruled that ground of the motion, as well as all others.

The state’s attorneys cite State v. School-field, 29 Tex. 502, wherein Judge Bell held that the motion or demurrer to quash the indictment in that case which was simply and solely because it was “insufficient in law,” did not inform the court whether the objection was one of form or of substance, and that the lower court was not called upon to pass upon any such general objection. They also cite in that connection the case of Phillips v. State, in the same volume, page 234, wherein that decision of Judge Bell’s was cited. In the Phillips Case the Supreme Court did not follow the Schoolfield Case, but, on the contrary, did consider the objection in that instance to the effect solely that the indictment was “insufficient, and charged no offense known to the law,” and held, as the lower court did, that the indictment was good.

This court, from its foundation continuously down to the present time, has uniformly held that the validity of an indictment as to substance may be attacked at any time in this1 or in the lower court, even after an affirmance in this court, and for the first time on motion for rehearing. White v. State, 1 Tex. App. 211; Holden v. State, 1 Tex. App. 234; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Woolsey v. State, 14 Tex. App. 57; Maddox v. State, 14 Tex. App. 447; Gonzales v. State, 58 Tex. Cr. R. 141, 124 S. W. 937; Dunn v. State, 71 Tex. Cr. R. 91, 158 S. W. 300; Jasper v. State, 73 Tex. Cr. R. 198, 164 S. W. 851; Ryan v. State, 176 S. W. 49.

In several well-considered cases this court has held that if the indictment is duplicitous on its1 face, the defect is one of substance, and is ground for an arrest of the judgment, and, in effect, can be raised at any time. Weathersby v. State, 1 Tex. App. 646; Hickman v. State, 22 Tex. App. 441, 2 S. W. 640; Scales v. State, 46 Tex. Cr. R. 301, 81 S. W. 947, 66 L. R. A. 730, 108 Am. St. Rep. 1014; Wood v. State, 47 Tex. Cr. R. 543, 84 S. W. 1058. The state claims that, as no motion was made to quash the indict ment specifically because it was duplicitous and even if it was, alleging in one count three separate and distinct offenses, it was too late to raise such question after verdict, and call our- attention to Cabiness v. State, 66 Tex. Cr. R. 416, 146 S. W. 934, and Green v. State, 66 Tex. Cr. R. 452, 147 S. W. 593, where we cited some authorities to that effect. It may be that under a peculiar state of fact such doctrine would apply, but we think it does not in this case. It is noticeable that while the court herein submitted conjunctively to the jury a finding on all three offenses embraced in the indictment and the verdict of the jury was general, the court applied the verdict and conviction by the judgment to aiding and abetting embezzlement. The testimony by the state not only fails to show embezzlement, but its own evidence positively establishes no embezzlement by Burns hence there could be no aiding and abetting in embezzlement by appellant. However, that has nothing to do with whether or not the indictment was fatally defective.

We have given this case and the questions arising in it an unusual amount of investigation and consideration, and also have carefully studied the state’s brief and motion for rehearing, and we are thoroughly satisfied that our rulings in the original opinion were correct. The motion is therefore, overruled.
      <3=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: TALBOT, J.

text:
    ADKINS et al. v. GILLESPIE.
    (No. 7627.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 21, 1916.
    Rehearing Denied Nov. 18, 1916.)
    1. Vendor and Purchaser <@=»130(8) — Contracts — Construction—Title of Vendor.
    Under contract for sale of realty contingent on showing marketable title, an abstract, showing that certain vested interests created by judgment were outstanding, did not show such record title as was in contemplation of the parties.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 246; Dec. Dig. <@=> 130(8).]
    2. Judgment <®=>504(1) — Validity — Collateral Attack.
    Where final judgment in partition shows that commissioners departed from the first judgment and their instructions and substituted other lands for those directed to he partitioned, the judgment is void, and does not affect the title of any of the parties, and is subject to collateral attack.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 944; Dec. Dig. <@=>504(1).]
    3. Judgment <@=>495(1) — Collateral Attack —Presumptions.
    In determining whether title offered was marketable, where the abstract showed a simple partition suit in which the commissioners departed from the primary judgment, it cannot be said that the presumption must obtain that pleadings were filed and evidence introduced on the hearing which authorized such final judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 549y2, 933; Dec. Dig. <@=>495(1).]
    4. Vendor and Purchaser <@=>130(2) — Title of Vendor — “Marketable Title.”
    A good title may be unmarketable, since a marketable title is one free from judicial doubt or uncertainty as to facts under which possession can be acquired and retained without litigation.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 246; Dec. Dig. <@=> 130(2).
    For other definitions, see Words and Phrases, First and Second Series, Marketable Title.]
    5. Vendor and Purchaser <@=>130(7) — Title of Vendor — “Marketable Title.”
    If an abstract shows merely a title by limitation, it is not a marketable title, since litigation may arise in regard to it.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 246, 247; Dec. Dig. <@=>130(7).]
    6. Vendor and Purchaser <@=>140 — Title of Vendor — Marketable Title.
    Under a contract by which the vendor agrees to convey marketable title, a showing of title by limitation, made only by ex parte affidavit, is wholly insufficient; such an affidavit being purely hearsay and inadmissible as evidence.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=>140.]
    7. Vendor and Purchaser <@=>130(7) — Title of Vendor — Rights of Vendee.
    Under a contract requiring the vendor to convey marketable title, the vendee need not look beyond the abstract furnished him, and although the vendor has good title by limitation, the vendee’s rights are not to be determined on showing made on the trial of his action to recover money deposited, brought long after notification of rescission.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 246, 247; Dec. Dig. <@=>130(7).]
    Error from Dallas County Court; T. A. Work, Judge.
    Action by A. C. Gillespie against A. C. Adkins and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    K. R. Craig, of Dallas, for plaintiffs in error. Spence & Haven and W. J. Rutledge, Jr., all of Dallas, for defendant in error.
   TALBOT, J.

We extract from the briefs of the parties the following statement of the nature and facts of the case: On the 18th day of May, 1914, plaintiffs in error A. C. Adkins and W. A. Polk entered into a written contract with defendant in error, A. C. Gilíes-pie, for tlie exchange of lands. Adkins and Polk were to convey to Gillespie lot No. 1 in block No. 3 of the Houston & Texas Central Railway Company’s addition to the city of Dallas. In exchange Gillespie was to convey to Adkins and Polk another tract of land in the city of Dallas, a description of which is unnecessary. It was provided that each party should “within 10 days furnish to the other party an abstract of title down to date, showing a marketable title to the land put into the exchange,” and that 30 days should be allowed for removing any objections which might be made by the other party. It was further provided that if the title to the land to be put in by either party should not be shown to be marketable, that the deal might be declared off by the other party. It was also stipulated that $400 should be deposited by each party as a forfeit for failure to comply with the contract, one half to be paid to B. T. Barry real estate department, as liquidated damages, and the other half to the other party. The money was deposited by both parties, $400 each, with Bryan T. Barry real estate department, composed of Bryan T. Barry, John T. Payne, and M. L. Moore. The abstract of the title of Adkins and Polk was examined for Gillespie by Coombes & McGuire, attorneys, and in an opinion delivered in writing to him certain defects in the title of Adkins and Polk were pointed out. These defects, which were set out in Gillespie’s amended petition, were, in substance, that James N. Smith, to whom the land embracing this lot formerly belonged, devised by will all his property to his daughter, Sarah Francis Smith, from whom the Houston & Texas Central Railway 'Company afterwards purchased the land embracing this lot. The Houston & Texas Central Railway Company conveyed the lot in controversy to S. F. Needham. After this last-named conveyance, but before it was recorded, the heirs of the widow of James N. Smith recovered this lot from Houston & Texas Central Railway Company. The interests of some of the heirs of Mrs. Smith had passed to Houston & Texas Central Railway Company, but the interests of others had been conveyed and were outstanding in other persons, as follows: Louisa Hedges and E. A. Walker conveyed to Sarah A. Cole and W. P. Cole and G. A. Cole to John D. Cole; Minerva, Clara and Emma Wood to G. C. Cole; John C. Cole and Tennessee Brandenburg to N. J. Husted, who conveyed to G. C. Cole; and that “the children of Mrs. Harrell do not part with their interest therein.” Gillespie alleged that the defects enumerated had been pointed out to Adkins and Polk, but they had not cured them. The opinion of Coombes & McGuire was furnished to Adkins and Polk, and the parties representing them in the proposed exchange. It is shown that at the expiration of 30 days 'from the date of the original opinion by Coombes & McGuire, a supplemental opinion was furnished by them to A. C. Gillespie, and this supplemental opinion called attention to the fact that nothing had been presented to the said Gillespie’s attorneys curing the defects pointed out in the title, and up to the time this case was tried in the trial court no information other than that contained in the abstracts of title was ever presented to A. C. Gillespie. It appearing to Gillespie that Adkins and Polk would make no further showing curing the defects pointed out in the abstract, he notified them and Bryan T. Barry real estate department, the real estate agents connected with the proposed exchange, that he would not accept the title as shown by the abstracts, and that he demanded a refund to him of the $400 deposited by him as a forfeit for failure to comply with the con: tract. The $400 not having been returned to Gillespie, he, on the 20th day of April, 1915, brought this suit against Adkins and Polk and Barry, Payne, and Moore for the recovery of the same. Adkins and Polk filed an answer to Gillespie’s original petition, denying generally Gillespie’s allegation that the title was not marketable, and by way of cross-action, alleging compliance with the terms of the contract, Gillespie’s refusal to perform the contract and praying for the recovery of the $400 deposited by Gillespie as a forfeit for his failure to so perform the contract.

By supplemental answer Adkins and Polk replied to the allegations of Gillespie’s amended petition, setting out specific defects in their title, to the effect that: (1) The abstract showed that after the suit by the heirs of Mrs. Smith against Houston & Texas Central Railway Company, in which they recovered by the partition this lot among others, a suit for partition among themselves was brought by the heirs of Mrs. Smith, to which suit all the heirs named in Gillespie’s petition were parties. That in this suit, after the decree ascertaining heirship and appointing commissioners, -an agreement was entered into between the heirs and the Houston & Texas Central Railway Company by which there was an exchange of lots, the Houston & Texas Central Railway Company giving certain lots which had been set apart to it in the partition'by the former suit, for certain other lots, including the one in controversy, which had been set apart to the heirs. That in accordance with this exchange the commissioners substituted the lots received from the Houston & Texas Central Railway Company for the lots released to it, and partitioned the whole among the heirs. That this exchange and substitution of lots was reported by the commissioners in their report of partition, and the partition as so made was approved by the court — district court of Dallas county — on . 'December 14, 1883, and decree entered vesting title in the several distributors in accordance with such partition. The supplemental petition set out the lots received by the several heirs alleged by Gillespie to have claims against this lot, as follows: One share, which was one-twelfth of the whole, was set apart to the heirs of Mrs. L. E. Walker, among whom were Louisa Elizabeth Hedges and E. A. Walker, consisting of lots 2, 18, 19, and 20 in block 3, all of which were by the partition between heirs and Houston & Texas Central Railway Company set apart to the heirs; one share, one-twelfth, was decreed to the heirs of Calvin G. Cole, among whom were G. A. Cole, John C. Cole, Emily Wood, Minerva Clark (then Preston), and the children of Sarah Harrell. This share consisted of lots 6, 7, and 17 in block 18, which were set apart to the Smith heirs in the former suit, and lots 1, 2, and 3 in block 4, and lot 17 in block 3, acquired by the exchange referred to from Houston & Texas Central Railway Company; of this, lot 3 in block 4 was set apart to the children of Sarah Harrell as their share of the whole. Defendants further alleged that the purchase by Sarah A. Cole of the interests of Louisa Hedges and E. A. Walker, as well as the purchases by John D. Cole, of the interests of W. P. Cole and G. A. Cole, and the purchases by G. C. Cole of the interests of Minerva Clark and Emma Wood, were all made pending the partition suit between the heirs, and such purchasers were concluded by the judgment therein. That N. J. Husted purchased the interests of John C. Cole and Tennessee Brandenburg before the decree appointing •commissioners for partition, but in his conveyance thereof to G. C. Cole, made after the partition, he identified such interests as the same lots set apart by the partition to the heirs of Calvin G. Cole, the ancestor of his vendors.

Adkins and Polk further alleged: That the abstract showed the absence of any assertion of claim by the Houston & Texas Central Railway Company to any of the lots formerly belonging to it, and which had, by 'the exchange referred to, been taken by the commissioners and partitioned among the heirs, and the acquiescence of all parties in the decree for such a long period of time, 30 years. That the judgment was conclusive of all the rights of all the parties. Or, if not conclusive as to the minors, the children of Sarah Harrell, it became so at the expiration of 2 years from the arrival of each of them at its majority. That the judgment had never been set aside or appealed from, and more than 2 years had expired since the date at which the youngest child of the Harrell minors, then living, arrived at its majority. They also pleaded that they and those under whom they claimed were and had been for more than 35 years in the actual possession and occupancy of the lot under claim of right adverse to all the world. That this fact was commonly and generally known in the community where said land .was situated, and there were and still are many credible persons known to plaintiff who are cognizant of the fact and to whom plaintiff had been referred. That there is and can be no doubt nor dispute about that fact and none was suggested by plaintiff or his attorney.

The title to the property involved was originally in James N. Smith. He left a will, which was duly probated, bequeathing practically all his property, including the tract of land in which the lot in controversy is embraced, to his daughter, Sarah F. Smith, a daughter by a former marriage; with a life estate in a part of his property to his widow, with remainder over to said daughter. This daughter subsequently married, J. H. Bul-lington, and, after the death of Bullington, conveyed the tract embracing the lot in controversy to the city, of Dallas. Subsequently, on November 28, 1871, the city of Dallas conveyed it to trustees of Houston & Texas Central Railway Company, who subsequently conveyed to the railway company.

Malinda Smith, whose maiden name was Cole, the widow of James N. Smith, died without issue, leaving her mother, Polly Cole, surviving her, who later died. On March 11, 1875, the brothers and sisters of Malinda Smith, who were living, and the descendants of those dead, instituted suit in the district court of Dallas county against Houston & Texas Central Railway Company, for the recovery of one-half of the 6-acre tract embracing this lot, as well as one-half of another tract of 6% acres adjoining this, alleging that the land was the community property of James N., and his wife, Malinda, Smith. On February 7, 1879, judgment was rendered in the said suit, giving the plaintiffs, naming them, a recovery of a one-half interest in the two tracts of land, and appointing commissioners to make partition. On January 30, 1880,' the report of the commissioners was approved, and the two tracts of land partitioned between plaintiffs, who are commonly designated the Cole heirs, and the defendant Houston & Texas Central Railway Company. The commissioners in their report stated:

That they had “preserved the present system of streets, lots, and blocks, as laid out by the said Houston & Texas Central Railroad Company, in their addition to the city of Dallas. The 6%-aere tract was partitioned by lot and block numbers, giving to plaintiffs 33% lots, and to defendant 33% lots, each 25x90 feet. The 6-aere tract was partitioned by giving plaintiffs the N. W. half, embracing this lot, and the defendant the 8. E. half. The abstract showed a judgment in suit styled J. M. Cole et al. v. J. H. Cole, No. 4483, in the district court of Dallas county of date December 5, 1882.”

This judgment recited that the plaintiffs and the defendants in the suit, naming them, appeared and announced ready for trial. It adjudged that the plaintiffs and the defendant, except certain named attorneys, were the sole surviving heirs at law of Malinda Smith and Folly Cole; that the therein named attorneys were entitled to a certain interest in the lands involved in the. suit; and the heirs of Malinda Smith and Polly Cole were entitled to a certain interest in said lands and fixed, their interests. The minors, Walter Walker, Ida E., Travis E., Walter, Eddie, Jesse, Thomas, and Clay, Harrell appeared by their guardian ad litem, J. T. Downs, appointed by the court.

The decree then proceeds to appoint commissioners to “appraise, value, and partition” the lands, describing the portion of the two tracts, the same as in the partition between the heirs and Houston & Texas Central Railway Company. The court noted at end of decree that other lands sought to he partitioned were not sufficiently described, but that this decree should not affect a future partition of them.

The abstract also showed a decree which had been entered in said cause as of date December 14, 1883, on the report of the commissioners of partition. The decree copies in full the report of the commissioners, which, reciting the appointment, sets out a description of the property which they were directed to partition, and added:

“We, the undersigned commissioners, after be-' ing duly sworn, and notifying the parties on the -- day of December, 1882, proceeded to appraise, value and partition said above-described premises between the several part owners as directed in said writ; and having found upon survey that the three acres last above described had also been heretofore subdivided into lots and blocks appropriately named and numbered, and fronting and abutting upon recognized streets and alleys, and being advised that an agreement has been entered into between the part owners of said above-described premises, and the Houston & Texas Central Railway Company, by the terms of which agreement the said part owners were to exchange lot 14, block 17, lots 6, 7, 8, 9, 10 and 11, block 19, lot 3, block 29, lot 18 in block 17, lot 1 in block 18, lot 28 in block 17,1 and lot 1 in block 3, of the railroad addition to the city of Dallas, all comprised in said above-described premises for certain other lots not included in said boundaries, to wit: Lots 17 and 18 in block 9; lots, 13, 21, 22, and 23 in block 16; lots 18, 19, 20, 21, 22, 23, 24, 25, and 26 in block 6; lots 1, 2, and 3 in block 4; lot 17 in block 3; lot 7 in block 29; lots 3 and 4 in block 3; lots 1, 2, and 3 in block 16; lots 3 and 4 in block 28; lots 8 and 9 in block 4; lot 2 in block 28; lot 14 in block 16; lots 10, 11, and 12 in block 17, and fractional lots 3, 4, and 5 in block 19 of the Houston & Texas Central Railway Company addition to the town of Dallas, and after duly appraising each lot separately, we divided the whole into twelve equal parts according to the appraised value thereof, and allotted,” etc—

setting out the several lots awarded td each of the several shares. To the heirs of Calvin G. Cole, among whom were included, of the parties indicated by plaintiffs’ petition, whose titles were outstanding, W. P. (William) Cole, G. A. Cole, Minerva Preston (Clark), Emily (Emma) Wood, John C. Cole, Tennessee Brandenburg, and the children of Sarah Harrell, were alloted lots 1, 2, and 3 in block 4; lot 17 in block 3; lots 6, 7, and 17 in block 18. Of these lots 1, 2, and 3 in block 4 and lot 17 in block 3 were obtained by the exchange from Houston & Texas Central Railway Company. Of this allotment the commissioners awarded lot 3, block 4, to-the children of Sarah Harrell. To the heirs of Mrs. L.. E. Walker, among whom were the-other heirs whose Interests plaintiffs alleged were outstanding, viz. Louisa Hedges and E.. A. Walker, were allotted lots 2, 18, 19, and-20 in block 3; lots 7, 8, and 9 in block 17;. and lot 23 in block 3. None of these were-embraced ip or affected by the exchange. Lot 3 in block 4-was recommended to be apportioned to the minor heirs of Sarah Harrell for the reason stated in the report:

“We deem said award beneficial to all the' other part owners of said share awarded to the heirs of Calvin G. Cole, the remainder of said heirs being adults and thus enabled to dispose of their respective interests without further-costs of partition.”

The commissioners appraised the property at $825 for each share and the whole at 89,90d. Concluding the recital of the report of commissioners the decree proceeds:

“And there being no opposition, and the same-having been fully- considered, it is ordered, adjudged and decreed by the court that the same-be in all things approved.”

Thereupon the commission proceeded in, the usual form to vest and divest title in-accordance with the allotment made by the-commissioners, expressly vesting title to lot 3, block 4, In the minor heirs óf Sarah Harrell. The record shows no motion for new trial, appeal from or other proceeding to review or vacate the decree of partition. There-is nothing in the record showing that the-Houston & Texas Central Railway Company has ever asserted any claim to any of the lots which were obtained from it by the exchange.

The abstract further showed a deed executed by J. W. Ferris, Anson Rainey, John H. Cole, M. Y. Cole, J. L. Cole, J. T. Downs,. Eliza J. Funkhouser, and W. A. Cole (owning nine-twelfths of the land) to Houston & Texas-Central Railway Company in consideration of $1, all the lots, identified by lot and block numbers, 'which the report stated had been given by the part owners to the Houston & Texas Central Railway Company in the exchange. J. M. Cole purchased the interests-of A. G. Walker, Jr,, and M. ÍD. (Elizabeth)-Callaway, two of the five heirs of L. E. Walk- • er, in 1881. Proceedings in administration showed that J. M. Cole died January 21,. 1883. S. A. Cole, his widow, was appointed administratrix, who later filed an application to sell lot 7 in block 29 (set apart in the partition to J. M. Cole), and two-fifths undivided interest in lots 7, 8, and 9, block 17, and 2,. 18, 19, and 20 in block 3 (set apart to the-Walker heirs), and lots 5 and 6 in block 3 (set apart to J. M. Cole). After the order of" sale was entered, the administratrix was authorized to make another exchange of lots - with Houston & Texas Central Railway Company, which was done in January, 1884. The-abstract further showed a deed from Houston & Texas Central Railway Company to S. F. Needham, dated June 28, 1878, recorded Jan— nary 31, 1884, conveying lot 1 in block 3 for a consideration of $75 of which $50 was paid and note due in 12 months executed for $25. Receivership proceedings against Houston & Texas Central Railway Company; order discharging all the joint receivers, except Chas. Dillingham and authorizing him to collect notes given for the purchase money of lands and execute releases of liens. Deed of release from Dillingham, receiver, to S. P. Needham, of the lien for the $25; deed from S. F. Needham and wife to A. M. McAllister, dated August 29, 1879, conveying lot 1, block 3; deed from A. McAllister, joined by her husband, to W. R. Fisher, dated June 24,1891, conveying 30x76 feet off same lot; W. R. Pisher and wife deeded to John Tomson and wife, dated November 29, 1893, conveying same 30x76 feet; Mrs. Amanda McAllister and husband to John Tomson, deed dated May 20, 1892, conveying lot 1, block 3; deed from John Tomson and wife to W. A. Polk and A. C. Adkins, dated August 4, 1913, conveying lot 1, block 3. The abstract also showed affidavit of John Tomson, dated August 4, 1913, identifying A. M. P. McAllister as the same person as Mrs. A. McAllister and Mrs. Amanda McAllister. Affiant also stating:

“Since our purchase of this property in 1892, same has been improved, rented, and used continuously by us through our tenants, and our title has never been called in question.”

The case was tried without a jury, and the result was a judgment for plaintiff Gillespie for the recovery of the $400, the amount of the deposit, and for interest, and the case is now before this court on writ of error.

The trial court found, among other things, as shown by his conclusions filed, that the decree of partition in the suit of J. M. Cole et al. v. J. H. Cole, No. 4483, district court of Dallas county, was fatally defective, because it undertook! to partition among the parties to that suit, upon the report of the commissioners, without appropriate pleadings and proof, lands which said commissioners reported said parties had agreed to take in exchange for the lands which they had been ordered to partition; the language of the trial court being:

“No appropriate pleadings providing for the substitution of the lands which the commissioners actually partitioned for the lands ordered to be partitioned are shown in the abstracts of title furnished to plaintiff Gillespie; and no such contract as is mentioned in the commissioners’ report is shown in the abstract of title.”

The plaintiffs in error, who will hereinafter be referred to as defendants, contend: (1) That the abstract of their title to lot No. 1 in block No. 3, which was to be given in exchange for the property of defendant in error, who will hei'einafter be referred to as plaintiff, does not and did not show that there was any outstanding title in any of the parties to the partition suit of J. M. Cole et al. v. J. H. Cole, which they and each of them are not barred and estopped from asserting. (2) That the record of said partition suit, as disclosed by said abstract, showed that all the heirs named in the petition of the plaintiff were parties to said suit as plaintiffs, the heirs of Sarah Harrell being represented by guardian appointed by the court; ihat the said decree of partition purports to have been made upon an agreed exchange between the parties to said suit and the Houston & Texas Central Railway Company, whereby an exchange was made of the lots including the lot in controversy to the said railway company for other lots formerly belonging to said company, which latter were substituted and partitioned by the commissioners; that the decree of the court approving and adopting the report of the commissioners was, in effect, the ratification of such exchange, and the presumption must obtain, in the absence of any appeal from or effort to vacate said decree for more than 30 years, that whatever amended pleading and evidence, as were necessary to authorize the court to act in the matter of substitution of other lots for some of the lots embraced in the original decree of partition therein, were filed in said cause and brought to the attention of the court, and that all steps necessary to authorize the court to take the action it did were taken; therefore the decree became and was conclusive and binding on all the parties thereto and their privies. (3) That after such great lapse of time, the presumption must obtain that the several distributees of said estate, including the parties named by plaintiff, have appropriated the parcels' of land respectively set apart to them, and that innocent third persons have acquired such interest therein as to render impossible a repartition of said land, or the restoration to the Houston & Texas Central Railway Company of the land received from it. (4) That in the absence of any showing to the contrary, the presumption is that the several distributees acquiesced in the partition and accepted and converted or still hold the respective portions of the estate set apart to them. In that situation, no one of them could assert a claim to any other part of the land. (5) That any assertion of title to the lot in controversy by any one of the parties named in plaintiff’s petition would be a collateral attack on the judgment of partition. The defendants further contend that an undisputed occupancy and possession of the lot in controversy, maintained continuously for more than 30 years by the successive holders of the title, was shown in the abstract of title furnished the plaintiff by the affidavit of John Tomson, and that the undisputed evidence on the trial of this case was that the defendants and those trader whom they claimed had been in the adverse and uninterrupted possession, using and occupying said lot under deeds duly recorded for more than 30 years; that for more than 20 years next before the submission of the abstract of the title to plaintiff all tases on said lot were paid by said holders, and that there was no suggestion hy the testimony, or otherwise, that any fact or facts existed or might be reasonably supposed to exist, which could raise any doubt about these facts, or which could in any wise defeat or render doubtful the legal effect of such continuous adverse possession under deeds duly registered, with the payment of taxes as aforesaid.

As has been shown, the contract for exchange of properties, executed between the defendants on the one part and the plaintiff on the other part, was conditioned upon the furnishing by defendants of “an abstract of title down to date showing a marketable title to the land put into the exchange,” with the understanding that 30 days would be allowed to remove any objections made to the title by said Gillespie. The abstract of title furnished to plaintiff by defendants showed that a judgment, a link in their chain of title, .entered by the district court of Dallas county, Tex., in the suit of J. M. Cole et al. v. J. H. Cole, vested interests in certain heirs of Malinda Smith, and that certain of these interests, involving the lot in controversy, as pointed out in the opinion of Goombes & McGuire, delivered to plaintiff, were outstanding, and hence the title in defendants was not such a record title as was in the contemplation of the parties and as plaintiff had agreed to take. We agree with the contention of the plaintiff to the effect that where the final judgment in a suit for partition of certain described lands shows that the commissioners appointed to partition said lands departed from the first judgment in said, suit and their instructions and substituted other lands for those which ■they were directed to partition,- such judgment is void, does not affect the title of any of the parties to the said suit in any of said lands, and may be collaterally attacked. Such was the character of the judgment entering into defendants’ chain of title. The abstract of title furnished by them to the plaintiff showed that certain named parties as those of the brothers and sisters of Malinda Smith, who were living, and the descendants of those dead, and J. W. Ferris, A. Rainey, and J. T. Downs, were the joint owners of, among other land, the northwest one-half which included the lot in controversy, of a tract of 6 acres of land that had been recovered from the Houston & Texas Central Railway Company, and that as such owners the parties named were entitled to recover their respective interests fixed by the court as dependent upon the relationship of same to Malinda Smith, and of the others, their interests as attorneys who had acquired same as attorneys’ fees. The judgment directed that said tract, among other lands, should be divided into 12 equal parts and allotted to the different parties named therein according to their respective interests; Commissioners were appointed-by said judgment to appraise value and partition said tract with other lands described therein, and in obedience to the writ issued from the court reported that they had proceeded to-appraise, value, and partition the said 3-acre tract, together with other lands described in said writ. The commissioners further reported that having found upon survey that the said 3-acre tract had been theretofore subdivided into lots and blocks appropriately named, and numbered, etc., “and being advised that an agreement had been entered into between -the part owners of said above-described premises and the Houston & Texas Central Railway Company, by the terms of which agreement the said part owners were to exchange” certain named lots, all comprised in said 3-aere tract, including the lot involved in this suit, for certain other lots not included in said tract, that they had proceeded to substitute the lots to be secured by said part owners in exchange for the lots comprised in the 3-acre tract and to partition and allot said substituted lots instead of those which they had been directed to partition. • This report of the commissioners was by the judgment of. the court approved, and a decree entered divesting and vesting title in accordance therewith. The Houston & Texas Central Railway Company was not a party to that suit, and the decree of partition just referred to did not undertake or purport, so far as shown by the record sent to this court, to divest the title of the Cole heirs to the lot in controversy in this suit and other lots to be received by the railway company in the exchange referred to in the commissioners’ report, and vest same in said company. The partition made by said commissioners and the decree of the court based thereon dealt only with the lots to be received by the Cole heirs in said exchange, and do not, except possibly by inference, purport to divest -the title of the lot in controversy out of any one or to vest it in any one.

There is nothing in the abstract of title furnished defendant in error or in the proceedings had in the trial of this case to show that by pleadings oij otherwise the .parties sought specific performance .of the executory contract referred to by the commissioners in the report.' Indeed, there is nothing in said abstract or proceedings to show that such a contract ever existed except the bare statement in the final decree of partition purporting to be a part of the report of -the commissioners to the effect that said commissioners had been advised that such a contract had been entered into between the parties. It affirmatively appears, we think, from the decrees contained in the abstract, that the suit in which they were rendered was simply an ordinary suit for the partition of the property described in the pleadings. This being true, we do not believe it correct to say, in determining whether or not the defendants furnislied .plaintiff an abstract showing a marketable title, that the presumption must obtain that pleadings were filed and evidence introduced upon the hearing of the commissioners’ report before •the final partition decree was entered in the suit of the Oole heirs, which authorized the district court of Dallas county to substitute lots not included in the 3-acre tract for lots included therein, and which the commissioners had been ordered to partition and distribute among said heirs. We recognize the rule announced in the cases cited by the defendants in respect to collateral attacks upon judgments and the presumptions which ordinarily must obtain when a court of record assumes to exercise jurisdiction in a given case as to the validity of its proceedings, but we have concluded that the several presumptions which must obtain to sustain the position of the defendants in this case cannot be indulged. We think that notwithstanding the final decree of partition confirmed the report of the commissioners, in which it was recited that said commissioners had been, advised that the Cole heirs had entered into an agreement with the railway company, by the terms of which said heirs were to exchange lots with it, said decree is insufficient to divest the title of the Cole heirs in and to the lot involved in this suit. But whether or not the abstract, furnished the plaintiff showed a good title in the defendants is not the question.

The contract entered into between the defendants and the plaintiff for the exchange of lands obligated and bound the defendants to furnish an abstract showing a “marketable title,” and it has been correctly held that a good title may be unmarketable sometimes. The definitions of “marketable title” found in the adjudicated cases are variously framed, but there is no material difference attached to its meaning by any of them. We give some of the definitions found in adjudicated cases. A marketable title is one “free from judicial doubt or uncertainty as to matter of facts, and one in which the possession can be acquired and retained without litigation or judicial decision.” Vought v. Williams, 46 Hun (N. Y.) 638. It “is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction, and the doubt must be such as affects the value of the land, or will interfere with its sale.” Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; Roberts & Corley v. McFadden, Weiss & Kyle, 32 Tex. Civ. App. 47, 74 S. W. 105; Austin v. Barnum, 52 Minn. 136, 53 N. W. 1132. “It is one of such a character as should assure to the vendee a peaceful enjoyment of the property. Barnard v. Brown, 112 Mich. 452, 70 N. W. 1038, 67 Am. St. Rep. 381. A marketable title is defined to be, “in equity, a title in which there is no doubt involved either as to matter of law or fact. Dalzell v. Crawford (Pa.) 2 Law J. 17, 1 Pars. Eq. Cases, 3745.” In Brokaw v. Duffy, 165 N. Y. 391, 59 N. E. 196, it is said that “a title is not marketable when it exposes the party, holding it to litigation. * * * The distinction which once prevailed as to marketable titles between courts of law and equity no longer exists, and an action at law by the vendee to recover back purchase money paid may be based upon the same ground that would justify a court of equity in refusing to compel him to accept the title.”

The record title shown by the abstract furnished the plaintiff was not such, in our opinion, as to require the plaintiff to accept it under the terms of the contract entered into with defendants, but the question remains: Did said abstract show such a title by limitation as to require plaintiff to accept it? We think not. . The title of the defendants by limitation depends very probably “on an issue of fact as to which some dispute may arise.”. If so, such a title is not the marketable title called for in the contract. Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; Cline v. Booty, 175 S. W. 1081; McLaughlin v. Brown, 126 S. W. 292.

But' under a contract, as in this case, by which the vendor agrees to convey marketable title, a showing of title by limitation made only by an ex parte affidavit shown in an abstract is wholly insufficient. The only evidence of title in defendants by limitation contained in the abstract furnished plaintiff is the affidavit of John Tomson, one of the parties through whom defendants sought to deraign title. In this affidavit Tomson simply said:

“Since our purchase of this property in 1892, same has been improved, rented, and used continuously by us through our tenants, and our title has never been called in question.”

This affidavit does not state the requisite facts to show title by limitation, but if it did it would not suffice to meet the demand of the contract entered into between the defendants and the plaintiff for an abstract showing marketable title. The mere ex par-te affidavit of a party as to limitation forming a part of an abstract of title, even when placed of record, is purely hearsay and inadmissible as evidence in the courts, and is not record evidence of title. Cline v. Booty, supra, and authorities therein cited.

Under his contract plaintiff did not have to look beyond the abstract of title furnished to him by the defendants, and although the trial court found that as a matter of fact defendants had a good title by limitation plaintiff’s rights were not to be determined upon the showing made at the trial of this case, long after he had notified defendants of his determination to rescind the contract of exchange, and the trial court was justified in rendering its judgment in ignoring such finding and the evidence upon which it was based.

We have discussed only what we conceive to be the controlling questions arising on the appeal, and the conclusions reached and expressed rendered it unnecessary to consider the subsidiary or collateral questions presented and discussed in the able brief of counsel for the defendants.

Believing the record discloses no such error as would justify us in reversing the case, the judgment of the court below is affirmed.
      <gzs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    ROBERT McLANE CO. v. SWERNEMANN & SCHKADE et al.
    (No. 5665.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.)
    1. Trial <&wkey;395(2) — Findings of Fact and Conclusions of Law — Indefiniteness. Though a trial court’s findings of fact and
    conclusions of law were somewhat mixed, that is immaterial where the facts found sufficiently appear.
    [Ed. 'Note. — For other cases, see Trial, Cent. Dig. § 928; Dee. Dig. &wkey;395(2).]
    2. Sales &wkey;>73 — “Sale by Sample” — What Constitutes.
    When the designation of quality is by reference to sample, the sale is one by sample.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 188; Dec. Dig. <©=373..
    For other definitions, see Words and Phrases, First and Second Series, Sale by Sample.]
    3. Sales &wkey;>271 — Sale by Sample — Implication.
    A sale by sample implies a warranty that the goods sold are equal in kind and quality to the sample.
    [E'd. Note. — For other cases, see Sales, Cent. Dig. §§ 769-771; Dec. Dig. &wkey;271.]
    4. Sales &wkey;>168(5) — Sale by Sample — Inspection.
    Where goods are sold by sample, the purchaser has the right to inspect them, and if not equal in kind and quality with the sample, he may reject them.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 407; Dec. Dig. &wkey;168(5).]
    5. Sales i&wkey;79 — Sale by Sample — Place of DELIVERY.
    Generally, in the absence of special agreement, the place of delivery in ease of a sale by sample is the place of inspection.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 214-216; Dec. Dig. &wkey;79.]
    6. Sales <&wkey;201(4) — Sale by Sample — Place of Delivery.
    Where onions were sold by sample at a fixed price per pound, less freight, and when delivered to the carrier were equal in quality to the sample, title then passed to the buyer, though he was entitled to inspect them, to determine whether they were equal to the sample, and he is liable for the purchase price notwithstanding they were injured in transit through the carrier’s negligence, for if goods are to be shipped to a purchaser, delivery to a common carrier, is, in the absence of agreement to the contrary, a delivery to the purchaser.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 535, 536; Dec, Dig. &wkey;201(4).]
    7. Sales <&wkey;201(2) — Contracts—Delivery.
    Where there is a special contract that goods are to be delivered to a particular place, title does not pass until delivery.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 530; Doc. Dig. &wkey;201(2).]
    8. Sales <©=79 — Delivery—Agreement.
    That goods are to be shipped to a particular place does not show that the seller is to deliver them at such place.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 214-216; Dec. Dig. &wkey;79.]
    9. Sales <&wkey;181(l) — Delivery — Presumptions.
    In the absence of an agreement to deliver goods sold at a particular place, the presumption is that delivery is to be made at the place of sale, and in such case, though sale is by sample, acceptance need not be shown.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 473-476; Dec. Dig. &wkey;181(l).]
    10. Sales <&wkey;150(2) — Seller—Liability of.
    Where title to goods sold passed on delivery to the carrier, the seller is not liable for the carrier’s negligence.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 354, 355; Dec. Dig. &wkey;150(2).]
    11. Appeal and Error <&wkey;877(5) — Review-Persons Entitled to Allege Error.
    In an action by seller of goods against the purchaser and the carrier, judgment was rendered against the purchaser on the theory that title passed upon delivery to the carrier, and recovery in favor of the seller against the carrier was denied. The purchaser filed no cross-action against the carrier, and the seller did not complain of the denial of relief against the carrier. Held that, on appeal, the purchaser could not complain of the failure of the court to find in favor of the seller against the carrier.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3562, 3568; Dec. Dig. &wkey;877(5).]
    12. Pleading <&wkey;149 — Cross-Complaint — Right to Counterclaim.
    In an action by seller of goods against the purchaser and the carrier, the purchaser may, the goods having been injured in transit, cross-complain against the carrier; the seller contending that title passed to the purchaser on delivery to carrier.
    [E'd. Note. — For other cases, see Pleading, Cent. Dig. § 301; Dec. Dig. <&wkey;>149.]
    Appeal from Lee County Court; John H. Tate, Judge.
    Action by Swernemann & Schkade and others against the Robert McLane Company and the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs against the named defendant, it appeals.
    Affirmed.
    P. J. Alexander, of Giddings, and Henderson, Kidd & Gillis, of Cameron, for appellant. Richard W. Mayfield and Thos. W. Thompson, both of Giddings, for appellees.
   Findings of Fact.

JENKINS, J.

The appellees instituted suit in the justice’s court against appellant and the San Antonio & Aransas Pass Railway Company to recover the value of certain onions shipped by appellees from Lexington in Lee county, over said railway company’s road to appellant at Cameron in Milam county. Upon appeal from a judgment of the justice court, there was a trial in the county court before the court without a jury, which resulted in a judgment for appellees against appellant, and in favor of the railway company, from which judgment appellant has prosecuted this appeal.

The court filed its findings of fact, which, in substance, are that appellees sold to appellant onions, as alleged, by sample furnished appellant at its place of business at Cameron, Tex., at 2 cents per pound, less freight, and that the onions when delivered to the railway company by the appellees at Lexington, appellee’s shipping point, were in every respect equal to the samples furnished to appellants.

The evidence shows that the onions were injured in transportation by the negligence of the railway company, and that when they arrived at Cameron they were almost worthless. The appellant had no place of business, except at Cameron, and had no opportunity to inspect the onions until their arrival at Cameron, which fact was known to appellees at the time of the sale.

Opinion.

The trial court held, as a matter of law, that the only thing incumbent upon appellees was to deliver the onions to the railway company at Lexington equal to the sample by which they were sold, and that, having done so, they thereupon became the property of the appellants, and that appellant was thereupon bound to pay appellees the agreed price; and as the onions, when injured by the railway company, were the property of appellant, the appellees had no cause of action against the railway company. Except as to holding that the appellees had no cause of action against the railway company, and as to which no error is assigned, we concur in the trial court’s conclusion of law, as well as in its finding of fact.

The trial court’s findings of fact and conclusions of law are somewhat mixed, but this is immaterial, as it appears with sufficient clearness what facts it found. Wells v. Yarbrough, 84 Tex. 660, 19 S. W. 865; Ryon’s Heirs v. Rust, 65 Tex. 530; Transit Co. v. Alexander, 90 S. W. 1119; Mortgage Co. v. McCarty, 34 S. W. 306. When the designation of quality is by reference to sample, the sale is by sample. 35 Cyc. 223. A sale by sample implies a warranty that the goods sold are equal in kind and quality to the sample. Hume v. Oil Co., 27 Tex. Civ. App. 366, 65 S. W. 390; Shoe Co. v. Hamilton, 18 Tex. Civ. App. 283, 44 S. W. 405; Keeler v. Mfg. Co., 43 Tex. Civ. App. 555, 96 S. W. 1098. A sale by sample implies that the purchaser has the right to inspect the goods, and if they are not equal in kind and quality with the sample, he may reject them. 35 Cyc. 223-225. In the absence of special agreement, the place of delivery is generally the place of inspection. 35 Cyc. 226.

But it dobs not follow that the goods must equal the sample when they arrive at their destination. They must be such at the time of their delivery by the seller to the purchaser. If the seller deliver goods not of the kind and quality purchased, the minds of the parties never met as to such goods, and hence there is no sale. ■ The seller in such case has breached his contract. But if they are equal to sample when delivered to the purchaser, the contract becomes executed by such delivery, the title passes to the purchaser and the seller is entitled to price agreed upon. Thus it is seen the question, when are the goods to be considered as delivered to the purchaser? may be, and in the instant case is the controlling issue.

If there is a special contract that the goods are to be delivered at a particular place, the title does not pass until they are delivered at such place. Greif v. Seligman, 82 S. W. 533; Railway Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239; Hatch v. Oil Co., 100 U. S. 124, 25 L. Ed. 554; Carpet Co. v. Miller & Co., 38 Tex. Civ. App. 575, 86 S. W. 652. In the case last cited the court found that the linters were to be shipped to Boston, Mass., “and that the same should on inspection there by appellant be equal to the samples.” (Italics ours.) The fact that the goods are to be shipped to a certain place does not show that the seller is to deliver them at such place. Burton v. Crate Co., 161 S. W. 25; Battaglia v. Thomas, 5 Tex. Civ. App. 563, 23 S. W. 385, 1118. In the absence of an agreement to deliver at a particular place, the presumption is that delivery is to be made at the place of sale, and in such case acceptance need not be shown. Hatch v. Oil Co., supra, 100 U. S. 557, 25 L. Ed. 554. And the quality of the goods is to be determined as of the place of sale. 35 Cyc. 225.

If the goods are to be shipped to the purchaser, in the absence of an agreement to the contrary, delivery to a common carrier is delivery to the purchaser. Rea v. Schow, 42 Tex. Civ. App. 600, 93 S. W. 706; Greif v. Seligman, supra, 82 S. W. 534. If the goods at the time of their delivery to the buyer, at which time they became his property, are of the kind and quality represented by the sample, the sale is completed, and it follows from the legal propositions hereinbefore stated, that though a purchaser of goods sold by sample has the right to inspect them upon their arrival at his place of business, such inspection is only for the purpose of determining whether or not at the time they were delivered to the common carrier they were equal to the sample by which he bought, and not as to whether they have deteriorated while being shipped to him. 35 Cyc. 195. The seller is not responsible for the negligence of the railway company in making the shipment. De Stefano v. Todaro, 33 S. W. 390.

Appellant assigns error on the failure of the court to render judgment for the appellees against the railway company. As the appellant did not file any cross-action against the railway company, and as the appellees are not complaining of the action of the court in this regard, this assignment is overruled. The appellant might have filed such cross-action. Kemendo v. Fruit Co., 61 Tex. Civ. App. 631, 131 S. W. 73; Railway Co. v. Turner, 43 Tex. Civ. App. 608, 97 S. W. 509. But it did not do so.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
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