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

text:
    Ex parte DAVIS.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Criminal Law (§ 1210) — Sentence—Cumulative Sentence.
    Where the court does not order in its judgment that two of more sentences in different prosecutions shall be cumulative, as permitted by Code Cr. Proc. 1911, art. 862, the terms of imprisonment run concurrently.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3298-3301, 3315; Dec. Dig. § 1210.]
    2. Cbiminal Law (§ 1211) — Sentences—Cumulative Sentences.
    Under Code Cr. Proc. 1911, art. 862, providing that, where defendant has been convicted in two or more cases, and ordered confined in the penitentiary or county jail, judgment shall be pronounced in each ease as if there had been but one conviction, except that judgment in the second conviction shall be that punishment shall begin when the sentence in the preceding conviction has ceased to operate, the second or subsequent sentence, which is cumulative, may be a jail sentence for a misdemeanor.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3302; Dec. Dig. § 1211.]
    3. Criminal Law (§ 1210) — Sentence—Cumulative Sentences.
    Accused was arrested and charged with theft and burglary, and at his examining trial for burglary on June ISth was bound over and remanded to jail in default of giving bond, and on June 20th was convicted of theft, and sentenced to four months in the county jail. Code Cr. Proc. 1911, art. 862, provides that, when defendant is convicted in several cases, and sentenced to the penitentiary or confined in the county jail, judgment shall be rendered in each case as if there had been but one conviction, except that judgment in the subsequent conviction shall be that the punishment begin when sentence in the preceding conviction has ceased to operate. Held, that the time accused was in jail after his conviction for theft and commitment until he was tried and sentenced to the penitentiary for burglary should be considered as a part of the four months’ jail sentence, since the sentence for theft could not be cumulated, because there had then been no prior conviction.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3298-3301, 3315; Dec. Dig. § 1210.*)
    Prendergast, P. J., dissenting.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Habeas corpus proceedings by Josh Davis. From a judgment remanding relator to custody, he appeals.
    Reversed and remanded, with directions to discharge relator from custody.
    A. T. Russell and J. A. Spears, both of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

It appears from the record that in June, 1910, appellant was arrested, charged with theft and burglary. It is not apparent from the record whether he was first arrested on the charge of theft or burglary; the only dates being given are that he had an examining trial for burglary on June 18, 1910, and was tried in the county court on a charge of theft on June 20, 1910, and, as the law gives 'him two days after arrest before trial, it would appear that he had been arrested on the theft charge at least two days prior thereto. So, from the record before us, it reasonably appears that the arrests were contemporaneous or nearly so. At the examining trial, held on the 18th of June, 1910, he was bound over to await the action of the grand jury; his bond being fixed at $200, in default of which he was remanded to jail. Two days later he was adjudged guilty of theft, and his punishment fixed at four months in jail and a fine of $10. Relator has paid the $10 fine and all costs incurred. So the only question to determine is whether the time from and after' his conviction for theft and commitment to jail until he was tried and- sentenced to the penitentiary shall be computed as a part of the four months’ imprisonment assessed against him.

The contention of the state is that, as appellant was held on a charge of burglary in default of bond, the time he served until his trial and conviction for burglary should not be counted, while the contention of relator is that it should be counted, for, if he had given bond in the burglary case, the state would not have released him from jail, as he was also committed to jail for a four months’ sentence on the conviction for theft. Article 862 of the Code of Criminal Procedure reads: “When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary or the county jail for a term of imprisonment, judgment and sentence shall be rendered and pronounced in each case in the same manner as if there had been but one conviction, except that the judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate, and the sentence and execution thereof shall be accordingly.”

Prior to the adoption of this article of the Code it was held by our Supreme Court, in the case of Prince v. State, 44 Tex. 480, that the courts had no authority to cumulate the penalty and have one sentence begin at the expiration of another, but that they run concurrently, and this has always been the rule in this state. Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262. So it is by virtue of this provision of the Code that courts in this state can order a cumulative term, and that one term of imprisonment shall begin at the expiration of another, and, in case the court does not so order in his final judgment, the terms run concurrently. Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145; Ex parte Cox, 29 Tex. App. 84, 14 S. W. 396.

It has also been held that this provision of the Code applies as well to misdemeanors as to felonies (Stewart v. State, 37 Tex. Cr. R. 135, 38 S. W. 1143; Ex parte Cox, 29 Tex. App. 84, 14 S. W. 396; Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145), and we see no good reason why, if a person is convicted of a felony, and sentenced to a term of years in the penitentiary, and subsequently tried and convicted of a misdemeanor, and his punishment assessed at imprisonment in the county jail, the court could not order that the latter should begin after the expiration of the former. Certainly the Code is broad enough in its terms to embrace such construction, and seems by its very terms to so state, and we see no good reason to give it the narrow or more restricted construction given it by our Presiding Judge in his opinion affirming the judgment. But the decision of this question is not necessary to a disposition of this case. At the time appellant was committed to jail on conviction for theft he had been convicted of no offense, and served in jail for three months before he was tried. To admit that appellant was in jail charged with a felony, but not yet tried, and while-undergoing such confinement he is taken out and tried for a misdemeanor, and his punishment fixed at imprisonment in the county jail, the court in its judgment orders him committed to jail as of that date to begin the service of time fixed by the judgment, and the fact that he was in jail on a charge of felony would not and could not deter the time of beginning the term of service under the judgment of the county court under which he is then committed to jail, and from confinement therein he would not be entitled to release, even though he gave bond in the felony charge. In the case of Lockhart v. State, 29 Tex. App. 36, 13 S. W. 1012, it was held by this court that, even though the judgment stated the punishment or sentence was to begin in -future, this would be error, if the record did not affirmatively show that there had been a prior conviction, and this sentence ordered to begin at the expiration of the first.

In this case there is no contention that there had been a prior conviction, but only that a complaint had been filed against him, on which he was bound over to the grand jury, and certainly this fact would not postpone the judgment in the county court until he was tried some time in the future for burglary. No prior conviction having been had at the time he was convicted of theft, the court would have been powerless to order a cumulative penalty; but it did not attempt to do so, and this court will not do so, when the trial court did not so order.

As appellant served some 3 montlas and 13 days in jail prior to bis trial and conviction for burglary, and since bis discharge from the penitentiary be has served in jail more than 17 days in addition to the time served before his conviction, be is entitled to be discharged, and the cause is reversed and remanded, with instructions that he be discharged from custody.

PRENDERGAST, P. J.

(dissenting).

This is an appeal from the refusal of the district judge to discharge relator on the trial of his habeas corpus case.

The facts are brief and without contradiction. They show that on June 18, 1910, relator was arrested and held on a charge of burglary, and on that day had an examining trial, when his bail was fixed at $200; that he failed or refused to mate bail, and in default thereof was remanded to jail to await the action of the grand jury at the next term of the district court. Two days later, on June 20th, he was tried on a petty theft case, convicted, and his punishment fixed at a fine of $10 and four months in the county jail. On October 3, 1910, the district court having convened, he was indicted for burglary, to which he pleaded guilty, and he was properly sentenced to the penitentiary for a term of two years. His sentence in the penitentiary began at once, and he served the full time as required by law. Immediately upon his discharge from the penitentiary, a capias pro fine having been issued against him to collect the said $10 and the costs of said petty theft case, he promptly paid that in full. Still later, on July 27, 1913, a capias was issued under which he was taken into custody by the sheriff, so that he could be confined in the county jail for a term of four months as fixed by his petty theft conviction, and there turned over to the superintendent of the county farm, who took charge of him, and, under the law, put him to work on the public roads of the county as a county convict.

His contention is that the time he was in jail from June 20, to October 3, 1910, should be computed as a part of his imprisonment for the four months for petty theft, and that, as his subsequent imprisonment added to that time is equal to or exceeds four months, he is entitled to his discharge, claiming this under article 862 of the Code of Criminal Procedure.

The question to be determined by this court now is whether or not the time he was in the county jail from June 20 to October 3, 1910, shall be allowed to him as a part of his said jail sentence. Said article 862 is that, when the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary or the county jail for a term of imprisonment, judgment and sentence shall be rendered and pronounced in each case in the same manner as if there had been but one conviction, except that the judgment in the second and subsequent convictions shall- be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate, and the sentence and execution thereof shall be accordingly.

In my opinion this statute is inapplicable to this case. Certainly it was not intended by this that imprisonment in the penitentiary under a felony conviction should be discharged by confinement in the county jail under a misdemeanor conviction fixing the punishment at such confinement in the county jail, nor that confinement in the county jail under such misdemeanor conviction should be a part of the punishment for a felony conviction and confinement in the penitentiary. In other words, as I understand this statute, the convictions in two or more eases must be either felonies alone, or misdemeanors alone.

Again, it is clear to me that, the- relator being first on June 18, 1910, properly in jail upon his failure to execute bond for his appearance in the felony case, the fact that he was two days later convicted of a misdemeanor theft, and a part of his punishment, assessed as confinement in the county jail, would not convert his being held for bail first in the felony case into his being held in jail as a part of the imprisonment for misdemeanor conviction. If his misdemeanor conviction had been first, and he had been held in jail on that conviction at first, and subsequently committed to jail for his failure to execute bail in the felony case, then perhaps the time he was in jail should have been applied on his jail punishment.

In Ex parte Godfrey, 11 Tex. App. 35, this court, through Judge Hurt, said: “But certainly the county authorities have no right to take from jail a prisoner charged with felony, and hire him out, or place Mm to %oorh, as is required by article 878 (816). To do so would be a very great wrong, if not a felony. Suppose the prisoner was charged with capital felony; will it be insisted that he should thus in effect be discharged? The article embraces cases in which the prisoner is convicted of misdemeanor, the punishment being a pecuniary fine, and is of course controlled by the law regulatiny hail." (Italics mine.)

As said by this court in the lecent case of Culwell v. State, 157 S. W. 766, it is evident that the Legislature clearly intended that, where a person was convicted for two offenses, the time fixed for service in the penitentiary (or jail) should be cumulative, and should not be concurrent, otherwise there would be but one punishment for two offenses.

Our law authorizes, if it does not require, the counties of the state to provide workhouses or county convict farms upon which county convicts whose punishment is confinement in the county jail for any period of time longer than one day shall he required, by the counties, to do manual labor in accordance with the provisions of the Revised Civil Statutes. The Civil Statutes regulating this subject are chapter S, tit. 104, beginning with article 6232. Article 6233 expressly provides that a county convict embraces one whose punishment for a misdemeanor is assessed at imprisonment in the county jail for any term, and the law requires the counties to put such convicts at work upon public roads, bridges, or other public works of the county, etc. Article 6238. These authorities, and the clear effect of the statutes, too, show that the counties have no right to take a county convict out of jail, when held therein on account of his failure or refusal to give bail on a felony charge, and hire him out or put him to work on the convict farm or public roads, etc., but that he must be held in jail on such felony charge, and that the law requiring this controls. If this were not true, the counties would be helpless in such a case as this, and would be put to enormous expense in maintaining county convicts. If the county convict could thus manipulate, he would and could entirely escape all punishment for a misdemeanor. Suppose he was convicted of some grave misdemeanor, and his crime and conduct called for severe punishment therefor, and such was imposed, and he had also committed some grade of light felony, and refused to make bond therefor, then by continuing the trial of his felony case he could and would escape all punishment for the misdemeanor. This should not be the case, and, in my opinion, if the law is administered, as it should be in all cases, is not^the case. I think the doctrine of cumulative punishment, or rather of concurrent punishment, when not made cumulative, has not, and cannot have, application. In this case the statement of facts shows that the relator was properly held, in my opinion, by the county superintendent of the county workhouse, and was properly put to work and was at work on the county roads under the authority and requirements of said law. See, also, Ex parte Dockery, 38 Tex. Cr. R. 293, 42 S. W. 599; Ex parte Jones, 38 Tex. Cr. R. 142, 41 S. W. 626.

In my opinion, the district judge was correct in remanding the relator to the custody of the proper county'authorities to work out his said four months’ term of imprisonment under said misdemeanor conviction, and that the time from June 20 to October 3, 1910, at which he was held in jail, should be construed, and can properly be construed only, as no part of his said jail penalty, but that he was held during said time under the terms of his first commitment for failure to make bail in the felony case against him, and that the judgment of the district judge should be affirmed and relator not discharged, and I dissent from the court’s opinion.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    WHITEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Ceiminal Law (§ 292*) — Plea of Former Jeopardy — Requisites.
    A plea to an indictment for murder, alleging that accused on a date specified under an indictment fully presented was arraigned in the same court on a charge of murder and was by judgment of that court upon a verdict of the jury acquitted of murder in the first and second degrees, and found guilty of manslaughter, and praying that he he discharged as to murder in the first and second degrees, signed only by accused’s attorneys, and not setting out the former indictment, verdict, and judgment, or attaching it thereto, was insufficient as a plea of former jeopardy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 668-671; Dec. Dig. § 292.*]
    2. Criminal Law (§ 193½*) — Former Jeopardy-Conviction op Lesser as Acquittal op Higher Offense.
    A person tried under an indictment for murder and convicted of manslaughter could not be tried under a new indictment for any higher offense than manslaughter if the first indictment was valid.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dec. Dig. § 193 ½.*]
    3. Criminal Law (§ 170) — Former Jeopardy-Invalid Indictment.
    If an indictment for murder under which a person was convicted of manslaughter was void, on a trial under a valid indictment murder in the second degree was properly submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 312-321; Dec. Dig. § 170.*]
    4. Criminal Law (§ 170*) — Former Jeopardy —Invalid Indictment.
    Where, under an indictment for murder, a conviction for manslaughter was reversed on the ground that the indictment was returned by an illegally drawn grand jury, and on a trial under a proper indictment accused was again convicted of manslaughter, which conviction was also reversed, and a doubt existed as to whether the first indictment was in fact defective, on the new trial, no higher grade of homicide than manslaughter will be submitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 312-321; Dec. Dig. § 170.*]
    5. Homicide (§ 309*) — Instructions—Degree of Offense.
    Evidence, on a trial for homicide, that accused’s brother and H. were having a dispute in which H. used insulting epithets reflecting on accused’s mother, that the brother responded in the same spirit, that knives were drawn by both parties, some of the evidence indicating that the brother was in the wrong in drawing his knife, that when accused came upon the scene he urged his brother to make H. take back what he had said, and that while in this condition accused shot at H., killing S., justified the submission of manslaughter, but not the submission of any higher grade of offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. 4 309.*]

      6. Homicide (§ 309) — Instructions — Manslaughter-Accidental Killing.
    Where, on a trial for homicide, there was evidence that H. was making an assault on accused’s brother with a knife when accused interfered, that accused had a pistol in his hand, which, in the excitement, was fired accidentally killing S., and that accused did not shoot at H. and did not see S., an instruction that if accused, with a deadly weapon, in a sudden passion, arising from an adequate cause, and not in defense of his brother against an unlawful attack, shot with a pistol and thereby killed S., he was guilty of manslaughter, was erroneous, because of the omission of the issue of accidental shooting, and the jury should have been told that if the killing was accidental accused would not be guilty of manslaughter.
    [Ed. Note. — Eor other cases, see Homicide. Cent. Dig. §§ 649, 660, 662-655; Dec. Dig. § 309.]
    7. Homicide (§ 309) — Instructions—Negligent I-Iomioide.
    Where, on a trial for homicide, there was evidence that accused’s brother and II. were having a dispute, in which H. used insulting epithets reflecting on accused’s mother, to which the brother responded in the same spirit, that knives were drawn by both, some of the evidence indicating that the brother was in the wrong in drawing his knife, that when accused arrived he urged his brother to make H. take back what he 'had said, and that while in this condition he shot at H.; killing S., but accused claimed that the pistol was fired accidentally, the issue of negligent homicide should have been submitted, since, if accused was in the wrong in interfering in the trouble between his brother and H. and culpable under the law, he was doing an unlawful act and, though he did not intend to kill, was guilty of negligent homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. § 309.]
    S. Homicide (§ 309) — Instructions — Manslaughter.
    Where, on a trial for homicide, there was evidence that accused’s brother and H. were having a dispute in which H. used insulting epithets reflecting on accused’s mother, that accused urged 'his brother to make H. take back what he had said, and that 'he shot at H., killing S., the court should have charged that, if he shot at H. in a transport of passion produced by adequate cause, and missing him killed S., he was guilty of no higher grade of offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    9. Homicide (§ 17) — Manslaughter—Killing One with Intent to Kill or Injure Another.
    A person who, under a sudden transport of passion produced by adequate cause, shoots at one person, and missing him kills another, is guilty of no higher grade of offense than though he had killed the person at whom he shot.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 23; Dec. Dig. § 17.*]
    10. Criminal Law (§ 770) — Instructions— Manslaughter.
    On a trial for homicide, the court should have charged the law as to manslaughter from the standpoint of accused, and should not have confined the jury to their view of the case as they saw it from the facts before them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge. Willie Whiten was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    See, also, 151 S. W. 1182.
    Beard & Davidson, of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

This conviction was for manslaughter with the maximum punishment of five years in the penitentiary.

1. The indictment is in the ordinary form, charging murder with malice aforethought. Appellant filed what he terms a plea of former jeopardy, in this, to wit: That on the 26th day of June, 1912, this defendant, under indictment fully presented, was arraigned in this court upon a charge of murder and was, by judgment of this court, upon a verdict of a jury duly returned, acquitted of murder in the first degree, and also acquitted of murder in the second degree, and was found guilty of manslaughter and a sentence of three years imposed, and the defendant here presents the said indictment, together with the verdict of the jury and judgment of the court rendered upon said trial, and makes the same a part of this motion, and prays the court that he he discharged as to murder in the first and second degrees. This is only signed by his attorneys. The indictment, verdict, and judgment are not set out in the plea, nor attached to it. This is the only plea setting up the question of jeopardy found in the record. There is a hill of exceptions showing that when this motion was called, and upon hearing evidence, the motion was overruled, and he was placed upon his trial upon an indictment charging murder in the first degree for the killing of Jordan Sanders on 17th day of February, 1912, which was the same offense for which he had heretofore been tried. The court approving this bill qualified it as follows: “That the indictment first returned against this defendant was returned by an illegally drawn grand jury and was considered void. The said grand jury that indicted this defendant the first time was drawn by the jury commissioners selected at the November term of the district court, 1911. Said jury commissioners drew grand and petit juries for the January, March, and May terms of the district court, 1912. This defendant was first indicted by the grand jury drawn for the January term, 1912.”

Appellant contends there was error in not sustaining his plea. Under the authorities the plea was not sufficiently pleaded. It is unnecessary to repeat the plea, as it has heretofore been set out. See Willson’s Ann. Code of Criminal Procedure, § 19, and for collated authorities subdivision 1 of said paragraph. But inasmuch as the case has to be reversed upon other questions, this matter is mentioned so the trouble may not arise upon another trial. It may be from the statement of the judge in his qualification that this court was in error in reversing and dismissing the prosecution on the former appeal for want of sufficient indictment. That case went off under the doctrine laid down in Willie v. State, referred to in the decision on former appeal of this case, or what is alleged to be the former appeal. *

Without going into the merits of that question as to whether the court was in error, this much will be stated: If the indictment before was a valid indictment, then appellant could not be tried upon this indictment for any higher offense than manslaughter. If it was not a valid indictment, but was void, then the court was not in error in submitting murder in the second degree for the decision of the jury.

While there may be some question as to whether the indictment was void, yet upon another trial to avoid all these matters the court should not submit any higher grade of homicide than manslaughter. The writer believes, while he wrote the former opinion reversing and dismissing (151 S. W. 1182) that opinion may have been erroneous, although it is not altogether free from doubt. So upon another trial the court will not submit any higher degree of culpable homicide than manslaughter. We say this in view of another trial, although we do not think the question was sufficiently raised to require discussion by appellant’s plea of former jeopardy.

2. The evidence suggests that the court was justified in submitting the issue of manslaughter from the state’s viewpoint. From the evidence there was suggested self-defense, negligent homicide, and accidental shooting. The state’s theory was that, at a crap game, the brother of appellant and Rufus Haggerty got into a war of words, in which Haggerty used the first insulting epithets, which were responded to by the brother of defendant in the same spirit, and that there were knives drawn by the two parties, some of the evidence indicating that appellant’s brother was in the wrong in drawing his knife and requiring Haggerty to recant or take back some things he had said of a vulgar and obscene character. There is also evidence by the state suggesting, when appellant came upon the scene and saw the difficulty as it was, that he suggested to his brother to make Hag-gerty recant or take back what he said, using indecent language tending to reflect on his mother, and that while in this condition he shot at Haggerty, killing Sanders. Without going further into the details, the evidence did not suggest a higher culpability than manslaughter.

The defendant’s theory was that Hag-gerty was in the wrong from the beginning, witnessed by himself, and was making an assault upon his brother with a knife when he interfered; that he had his pistol in his hand and it went off; that he did not shoot at Haggerty, and did not see Sanders, the party who was shot; that he did not know why the pistol went off, but it was in the excitement at the time; and that he was very much excited and nervous, and the pistol fired accidentally. The court charged the jury, in a general way, with reference to manslaughter, without specifying any fact, but gave a general charge that any circumstance or combination of circumstances which produced sudden passion might be sufficient adequate cause for the jury to find manslaughter.

Applying the law to the case directly, the court gave the following charge: “If you believe from the evidence, etc., that the defendant, with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of his brother against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, did, in the county of Harrison and state of Texas, on or about the 17th day of February, 1912, as alleged in the indictment, shoot with a pistol and thereby kill Jordan Sanders, the deceased,” etc. The court then states the punishment to be not less than two nor more than five years in the penitentiary. Exception is reserved to this charge because it limited the question of manslaughter to the defense of his brother against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, whereas the issue of accidental shooting was in the case, made an issue by the facts, and the jury should have been instructed in this connection that if the killing was accidental he would not be guilty of manslaughter. He contends, 'and we think correctly, that he had- as much right, legally speaking, to this limitation of manslaughter as he did as to the limitation of self-defense. The testimony raised both questions, and it may also be suggested that under the facts we are of opinion that negligent homicide was in the case, and this limitation should also have been included.

It is unnecessary to treat further the testimony in this connection; but, under the facts stated, we are of opinion that negligent homicide was in the case. If appellant was in the wrong, in the trouble between his brother and Haggerty, when he interfered in it, and the interference placed him under the facts culpable under the law, then in that condition, if his pistol was fired accidentally he was doing an unlawful act, and not intending to kill, there would be negligent homicide in the case.

Another criticism of the failure of the court to submit manslaughter properly is raised in this: That if defendant shot at Rufus Haggerty in a transport of passion and not in defense of his brother, and accidentally killed Sanders, the issue of manslaughter ought to be presented to the jury from that standpoint. If he shot at Haggerty under a sudden transport of passion produced by adequate cause, and missing him killed Sanders, it could be no higher grade of homicide for killing Sanders than it -would have been for killing Haggerty, had the killing occurred under the facts of this case, and from this standpoint this homicide.could have been of no -higher degree than manslaughter. Upon another trial we are of opinion this phase of the law should be given. If the law had been correctly applied to manslaughter, the verdict might have been less than five years.

There is some criticism of the charge to the effect that the jury was confined too much to their view of the case, and as they saw it from the facts before them, and too little with reference to viewing the ease from the standpoint of the defendant as he saw it. Without going into a discussion of that matter any further than stated, upon another trial the court should guard this view of the law and charge the law from the standpoint of the defendant.

The judgment is reversed, and the cause is remanded.


author: HARPER, J. DAVIDSON, J.

text:
    COOK v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1.Criminal Law (§ 538) — Confessions— Proof of Exculpatory Statements.
    The falsity of exculpatory statements contained in a confession may. be shown by circumstances leading to a belief in their falsity, beyond a reasonable doubt, as well as by direct evidence.
    [Ed. No'te. — For other cases, Law, Cent Dig. §§ 1227-1229; 538.] see Criminal Dec. Dig. §
    2.Criminal Law (§ 781) — Confessions—Disproving Exculpatory Statements — Instructions.
    Where the state relies for conviction only upon a confession which contains exculpatory matters, the court should charge that the state must prove such matters to be false in order to authorize a conviction based upon the confession, but need not so charge where the state does not rely solely upon the confession.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1864-1871, 1898; Dec. Dig. § 781.]
    3.Homicide (§ 300) — Issues—Self-Defense.
    Where, in a homicide case, accused stated in his confession that he shot decedent because, when he asked decedent where his wife and child-were, decedent replied he was going to keep them, and ordered accused oil his - place, at the same time reaching for a gun, the court should have submitted the issue of self-defense in an independent charge, or in the charge submitting the confession, by requiring such exculpatory facts to be disproved.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4.Homicide (§ 300) — Instructions—Self-Defense.
    The jury are the judges of the credibility of witnesses and the weight of their testimony; and, where there is any evidence raising the issue of self-defense, the court must charge thereon, though the evidence be slight and strongly rebutted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 169) — Admission of Evidence — Uncommunicated Acts of Decedent.
    Evidence by decedent’s daughter that her father was shot at by an unknown person in February preceding the homicide in question in June, offered to show why decedent had purchased a gun, was not admissible for that purpose, in absence of a showing that accused knew that decedent had been shot at in February and was carrying a gun for that reason.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    6. Criminal Law (§ 814) — Issues—Insanity —Instructions.
    It was not error to refuse to submit an issue of insanity in a homicide case, where there was no evidence of -insanity at the time of the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833,1839,1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    7. Homicide (§ 309) — Sufficiency of Evidence.
    Evidence, in a homicide case, held not to raise the issue of manslaughter by showing that the killing was under sudden passion, aroused by adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig.
    8.Criminal Law (§ 15) — Statutes—Repeal —Degrees of Offense — Second Degree Murder.
    Pen. Code 1911, art. 16, provides that where the repealing statute substitutes no other penalty, the repealing of a law exempts from punishment all offenders against the repealed law, but article 17 provides that when the repealing statute substitutes a new penalty for an offense punishable by the repealed statute, the repealing statute shall not exempt from punishment for a violation of the repealed, law while it was in force, and article IS provides that if an offense be defined by one statute, and its definition subsequently changed, the modification shall not apply to offenses already committed. Held that the statute consolidating the offenses of first and second degree murder, and substituting a new penalty, did not have the effect of providing that the elements constituting such offenses, or either of them, should not thereafter be punishable, so that one who committed a homicide before the enactment of such statute could be convicted of second degree murder.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1, 16-20; Dee. Dig. § 15.]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Claude Cook was convicted of second degree murder, and appealed.
    Reversed and remanded.
    Owsley & Owsley, of Denton, for appellant. <1. H. Culp, of Gainesville, H. R. Wilson, Co. Atty., and F. M. Bottorff, Asst. Co. Atty., both of Denton, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 99 years’ confinement in the state penitentiary, from which judgment he prosecutes this appeal.

The state proved that appellant entertained animosity towards deceased, Mr. Hope; that during the month preceding the killing appellant was seen in an adjoining pasture and near the Hope farm, sitting around with a gun; that on the day of the homicide he was talking about his wife and child leaving him, and it is apparent he blamed Mr. Hope for the separation. He left Mr. Childs’ place, going in the direction of the Hope farm, taking a gun with him; he" was seen coming from the direction of and near the Hope farm just before the deceased’s body was discovered. These may be said to be some of the circumstances pointing to appellant as the party who killed Mr. Hope, outside of his confession. Mr. Hope was shot in the right side; the shot ranged upward, and was embedded near the left nipple. There is no positive testimony that appellant fired the shot outside of his confession, but the above circumstances would tend strongly to show his guilt, although two other men are shown to have been in the wheat field not a great distance from the body. These two men did not testify on the trial of the case. However, Mr. Childs testified that he lived about a mile south of the Hope farm, and appellant worked for him that morning; that after dinner appellant left, carrying his gun, and went in the direction of the Hope farm; that some time after this he met appellant about halfway between his farm and the Hope farm, and appellant said, “ ‘It’s all over.’ I said, ‘What is all over?’ He said, T shot him.’ I says, ‘Did you kill him?’ he said, T don’t know,’ and I said, ‘Didn’t you say anything to him?’ He said, ‘Tes.’ He said, T asked him where Lou and Don was and he addressed me with his left hand (indicating extending left hand before him and shaking same), and he put his right hand behind him as if to draw a weapon, and then I shot him.’ I said, T done heard it,’ and he said ‘What did you hear?’ and I told him that I heard somebody seen him shoot him off the binder, and he said, ‘It’s a damn lie; nobody didn’t see me.’ ” On cross-examination the witness said: “He did tell me that it was all over, and that he called to talk to old man Hope about Lou and Don, and that when he was talking to him (Hope) he (Cook) had his gun right down by his side. As to whether he didn’t say that old man Hope started to curse and said, ‘You God damn son of a bitch, I will kill you,’ will say that he didn’t use any cuss words to me. As to whether he didn’t say that Hope threw one hand out like that (indicating extending hand), and went for a gun with the other — the right — will say he said he addressed him with his left hand, and went for a gun with his right hand, and he said that he had his gun by his side, and that he then shot him. He didn’t relate the conversation between them any more than I have related. When I met him there he told me that he was going to the sheriff’s office to surrender. As to whether he was excited and talked abruptly, will say I didn’t see much change about him. As to whether he didn’t go into details about, anything, will say no more than I have stated. The only cuss words that were used there— I had misunderstood the man that told me, and I thought he said that they had seen him shoot him off the binder, and when I told him he said that it was a damn lie, and that was the only cuss word used; it was in reply to me saying that somebody said that they saw him shoot him off the binder; it was my mistake. He said it was a damn lie; that nobody saw him, and he told me that at the time he did shoot him, he was pointing at him with his left hand, and going for the pistol with the other, and that is what he shot him for.”

The court refused a charge presenting the issue of self-defense, and also refused a charge instructing the jury that if they believed that appellant made the statements to Cook, then the whole of the admissions or confessions are to be taken together, and the state is bound by them, unless they are shown by the evidence to be untrue.

State’s counsel insist that the court committed no error in refusing to give either or both of the special charges, and we are cited to the case of Powdrill v. State, 155 S. W. 237, as sustaining that contention. In the Powdrill Case the court gave á full and fair charge on self-defense, and, having done so, it was held that the issue was sufficiently presented, as the jury could not have found that appellant did not act in self-defense without finding that the statement made was not true. Again, the statement in the Powdrill Case was held to be res-gest®, and consequently the events speaking, and not a confession, and for this reason it was held that the charge on se,lf-defense was the appropriate and proper charge, and no charge was necessary, instructing it was incumbent on the state to prove the statement untrue. In this case the court did not charge on self-defense, nor did he charge that, the state having introduced the confession, it was incumbent on it to prove-the exculpatory portion thereof false. Had the court given either of these charges, we would be inclined to hold that no error was presented, for the issue would. have been, submitted to the jury.

In Jones v. State, 29 Tex. App. 21, 13-S. W. 990, 25 Am. St Rep. 715, this court said: “We are of the opinion, however, that in all eases where admissions or confessions-of a defendant are admitted in evidence against him, and such admissions or confessions contain exculpatory or mitigating statements, it would be proper and just to. the defendant to instruct the jury” that. the whole of the admissions are to be taken together, and the state is bound by them unless they are shown by the evidence to be untrue. Of course, the falsity thereof need not be shown by positive testimony, but may be shown to be so by circumstances, as well as any other fact, if the circumstances are of that force and cogency to cause the jury to believe the exculpatory part of the statement to be false beyond a reasonable doubt.

In the Pharr Case, 7 Tex. App. 472, under the facts in that case it was held that this character of charge should have been given, and some have construed that case to hold that such a charge must always be given when the state introduces a confession of a defendant which also contains exculpatory statements, but such has never been the rule in this court.

The extent of the holding and the true rule is announced in Slade v. State, 29 Tex. App. 392, 16 S. W. 254, in which Judge Hurt states the law to be: “In the Pharr Case the trial court had submitted to the jury two charges relating to the confessions or statements of the accused, the last being calculated to neutralize the first; the first being correct, and the last wrong. The charge rejected in this ease is in the language of the correct one in Pharr’s Case. Ñow, it is not decided in the Pharr Case that, though correct, such a charge must always be given, when requested, in every case in which the state introduces in evidence the admissions of the accused. This question was not before the court in the Pharr Case. Under what circumstances must such a charge be given? This question is answered in Jones v. State, 29 Tex. App. 20 [13 S. W. 990, 25 Am. St. Rep. 715]. When the state relies for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpating or mitigating matters, such a charge should be given.” In this case the state did not rely solely upon the confession to show that appellant killed deceased; circumstantial evidence, if believed by the jury, was introduced by the state, authorizing a conviction. So the failure to charge this feature of the law would not be reversible error had the court charged on self-defense as raised by the exculpatory statement, as was done in the Powdrill ease, supra.

The exculpatory statement introduced by the state, and emphasized by appellant in his cross-examination of the witness, raised the issue of self-defense from the appearance of danger as it appeared to him at the time. The fact that ill will existed between deceased and appellant is shown by the testimony of both the state and the defendant. This defendant, in his confession, admits he shot deceased, but gives as his reason that when he asked where his wife and child were (Lou and Don) that deceased replied, •“Right where I am going to keep them, and you keep off my place,” at the same time going for his gun with his right hand.

In the ease of Marnoch v. State, 7 Tex. App. 275, this court said: “Men, when threatened with danger, must determine from appearances and the actual state of things around them as to the necessity of resorting to self-defense; and, if they act from reasonable and honest convictions, they will not be held responsible criminally for a mistake in the extent of the actual danger, where other judicious men would have been alike mistaken. A contrary rule would make the law of self-defense a snare and a delusion. It would become but a mockery of the sacred right of self-preservation.”

The place where the bullet struck deceased, the range of the ball, and the other circumstances attendant upon the killing, would support a finding of the jury that this exculpatory part of the confession is not true, and evidently the court thought the circumstances so showing were so forcible and cogent as to relieve the court of the necessity of submitting that phase of the case to the jury. But under our law the jury are the judges of the credibility of the witnesses and the weight to be given the testimony, and as it is an undisputed fact that appellant in admitting the killing gave this explanation of his act in the same conversation and at the same time, he was entitled to have the issue thus raised, when this confession is introduced by the state as a part of its case, submitted to the jury in either one or the other modes; that is, by a charge on self-defense from apparent danger, or by a charge similar to those given in the Pharr and Jones Cases, supra.

Again the court permitted the daughter of deceased to testify that her father, deceased, was shot at late one evening in February preceding this homicide in June. It is not attempted to be shown that appellant did the shooting in February. If the testimony had shown this fact, then that appellant had attempted to kill deceased a short time prior to the fatal encounter would be admissible on the question of motive, etc. But as hereinbefore stated, it was not attempted to be shown that appellant fired the shot in February, but it was offered, as disclosed by the record, to explain why deceased had purchased and had been seen in possession of a gun, and the court instructed the jury in his main charge as follows: “The witness Lena Hope testified that the deceased was, on a certain occasion prior to the homicide, shot at in the nighttime, and that thereafter he procured and kept at his home or about his home a shotgun; the testimony of his being shot at was admitted before you for the purpose of explaining the cause of the deceased procuring said shotgun, if in your opinion it does explain it, and cannot be considered by you as original crim-inating evidence against the defendant in this cause.” In the absence of any proof that appellant was' aware of the fact that deceased had been shot at in February, and that for this reason he had purchased and had a gun, would such testimony be admissible against him to show the undisclosed motive of deceased in carrying the gun? We think not. If the record disclosed that appellant knew that deceased had been shot at in February, by an unknown person, and for this reason had purchased and was carrying a gun, then the testimony under this record might be admissible, and the charge as given not improper.

In Branch’s Criminal Law, Sec. 477, will be found a long list of cases wherein it is held that a defendant can only be bound so far as matters reasonably appear to him, and that deceased’s reason or motive for doing a given act, urilcnown to the person on trial, is not admissible against him. Brumley v. State, 21 Tex. App. 240, 17 S. W. 140, 57 Am. Rep. 612; Johnson v. State, 22 Tex. App. 224, 2 S. W. 609; Gilcrease v. State, 33 Tex. Cr. R. 619, 28 S. W. 531; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138.

The court did not err in refusing to submit the issue of insanity, as there was no testimony that defendant did not know right from wrong, or that he was insane at the time of the commission of the alleged offense.

Neither was a charge on manslaughter called for under the evidence adduced on this trial. Instead of raising that issue, the evidence would exclude the idea that the killing took place under the influence of sudden passion aroused by an adequate cause. Nothing in appellant’s confession, nor any other testimony adduced suggested any state of facts which would be adequate cause in law for sudden passion.

Many other grounds are stated in the motion, but none of them, other than as above stated, would present reversible error.

Appellant insists that as appellant was convicted of murder in the second degree, and there is now no such offense as murder in the second degree known to our law, he is entitled to have the case reversed and dismissed. To this contention we cannot accede. It is true that article 16 of the Penal Code provides that the repeal of a law, where the repealmo statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealed law, but article 17 provides that when by the provisions of the repealing statute a new penalty is substituted for an offense made punishable under the act repealed, such repealing statute shall not exempt from punishment a person who has offended against the repealed law while it was in force, and article 18 says, if an offense be defined by one law, and by a subsequent law the definition is changed, no such definition or modification shall take effect as to offenses already committed, but all offenders against the law shall be tried and their guilt or innocence determined in accordance with the provisions of the law before such change in the definition.

The Legislature, by taking the definition of murder in the first and murder in the second degree and consolidating them into one offense, does not declare that the elements constituting those offenses or either of them, shall no longer be punishable, but, instead of doing so, specifically declares that such acts shall continue to be offenses against the law, merely substituting a new penalty, and articles 15, 16, 17, and 18 of the Penal Code clearly show that there is no merit in the contention of appellant.

The judgment is reversed, and the cause is remanded.

DAVIDSON, J.

I agree to reversal, though not to all the reasoning. I think correct conclusion was reached in Combes v. State, 52 Tex. Or. R. 613, 108 S. W. 649, and Pratt v. State, 53 Tex. Or. R. 281, 109 S. W. 138, in regard to confessions of defendant when used by state to connect him with the alleged offense.


author: DAVIDSON, J. PR.ENDER.GAST, P. J., and HARPER, J.

text:
    CREED v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Intoxicating Liquors (§ 239) — Criminal Prosecutions — Instructions.
    On a trial for pursuing the business of selling intoxicating liquors, where the sheriff testified to finding whisky under the floor of accused’s house, while she testified that she had rented that room to J., that he was occupying it, and that she did not know the whisky was there, an instruction that the jury could consider the testimony relative to the finding of the whisky in determining whether or not she was prosecuting such business was erroneous; and the court should have charged that if the whis-ky was owned by J., or by some person other than accused, and was placed there without her knowledge or consent, it could not be considered against her for any purpose, but that if the jury believed it belonged to and was placed there by her'or with her knowledge it might be considered.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    2. Intoxicating Liquors (§ 239) — Criminal Prosecutions — Instructions.
    On a trial for pursuing the business of selling intoxicating liquors, the court charged that if the jury believed that accused acted only as agent in procuring certain whisky for J., she would not be guilty of making a sale thereof, but refused a charge that if she acted only as agent, such act could not be considered as evidence that she was engaged in the business. Held, that the refusal of such instruction was error.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.] ,
    3. Criminal Law (§ 1166) — Appeal—Continuance.
    The refusal of a continuance for an absent witness was not ground for reversal, where the evidence it was desired by accused to contradict or explain was excluded on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. § 1166.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Dene Maud Creed was convicted of an offense, and she appeals.
    Reversed and remanded.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For ottier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Por other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of pursuing the business and following the occupation of selling intoxicating liquors in local option territory, and given two years in the penitentiary.

Appellant filed an application for a continuance, which was overruled, and presented by bill of exceptions. The indictment was returned on 20th of January, 1913. Her arrest occurred on 22d or 23d. She employed an attorney, Mr. Cooper, to look into the case. After making an investigation process issued for the -witnesses on 25th of January. The case was called for trial on 27th; at least the motion to change the venue was filed that day. After hearing the evidence pro and con for some length of time this motion for change of venue was overruled on 29th. Application for continuance was then filed and overruled, and the ease went to trial. Several witnesses were sought to meet the state’s case. The absent witnesses were McClellan, Bracken, Ratliff, O’Neal, Henry, and Dunnaway. It is unnecessary, under our view of the ease, to state the diligence further than has been stated. Two or three of the witnesses were temporarily absent from the state; one was in Tarrant county, process for whom has not been returned. The state was permitted to introduce evidence that the sheriff of Potter county searched the house occupied by appellant after she was placed in jail, and under one room of the house found intoxicating liquor. This room is shown to have been occupied by a couple of parties who were lodgers. The testimony of the absent witnesses would have strongly corroborated the testimony of the defendant when she testified in her own behalf that such room was not under her control, and that she had no knowledge of the presence of intoxicating liquor claimed to have been found by the sheriff. In this attitude of the case this testimony was very material, especially so when viewed in the light of the charge and the admission of the sheriff’s testimony, as above stated. The testimony introduced in this connection showing intoxicating liquor had been found under the room occupied by these other parties to whom she had rented the room, and having failed to connect her with it otherwise than the mere fact of its being found there, the testimony of the witnesses if they had sworn as she expected them to swear, and as she stated they would swear, that she had rented the room out to other parties and whisky was found under their room, she being in no wise connected with it, and knew nothing about it being there, was very important and material, especially so in view of the fact that the court instructed the jury they could consider this evidence for the purpose of proving that she was engaged in the business of selling intoxicating liquors. This was the first application. The diligence was unquestioned, and, in view of this record and the meagerness of the testimony showing she was engaged in the business, made this testimony very material, and it made it the more material by reason of the fact that appellant herself was the only witness who testified to her want of connection with this whisky. This she denied most emphatically. Had this testimony been before the jury that body might have concluded that this evidence could not be used against her. Of course, we readily understand how defendant testifying in his own behalf against incriminating facts by the state would be regarded by the jury. He is the interested party, and therefore his testimony would be viewed with some degree of doubt and misgiving. The absent witnesses had no interest in her case, while she was very much interested in it. Being the first application, the evidence material, the diligence ample, and defendant being the only witness who was able to testify to the facts expected to be shown by the absent witnesses, it was obligatory on the court to have granted this continuance in order that this woman could have at least the advantage of testimony that tended to destroy the state’s case and meet the evidence introduced by the state. It may be further stated in this connection that she was in jail at the time the sheriff investigated the premises. For this reason this judgment must be reversed.

Another bill of exceptions recites that while appellant’s counsel was examining the witness Smith and attacking his testimony as best he could by showing the various places of his residence and occupations that Smith had followed during the past six years, the court interrupted the examination by making this statement: “I do not see any use in this long rigmarole of evidence being offered; that it was not material in his opinion” — and upon counsel objecting the court further remarked: “But you can go ahead, but I don’t see any use in it.” Objection was urged to this because the remarks of the court was on the weight of the testimony and giving his views thereof in' the presence and hearing of the jury, in violation of statutory provisions; that the remarks were prejudicial to appellant’s cause, and calculated to overcome and relieve the witness from the odium of his occupation and residence, and strengthen his credibility before the jury. It is also claimed in the bill of exceptions that it is always permissible to show a man’s occupation and business and change of residence as affecting his credibility, and such residence and occupations were changed repeatedly without the witness having worked or followed any business, and would have, to some extent, discredited his testimony before the jury but for the remarks of the court, and the remarks of the court were calculated to and did cause the jury to believe that in the opinion of the court it would make no difference if the witness was a thief or vagrant; that in this particular character of case his testimony ought to be believed. The statute prohibits the court from expressing his views about testimony being introduced, and requires him only to rule on ■ objections made. This was error, aijd in conflict with the statute.

The court charged the jury that: “If you believe from the evidence that the witness Harbour Jones procured whisky from defendant on the two occasions testified by him, but believe from the evidence that she acted as the agent of said witness and procured the whisky from some other person for said witness and was not the owner or in any manner interested in said liquors, then you are instructed that she would not be guilty of selilng whisky unlawfully to said witness, and you cannot convict the defendant for said sales, if any, under this indictment.” Various objections were urged to charge. We believe this charge does not properly submit the issue. Appellant was charged, it is true, with making two sales, but she was charged with pursuing the business and following the occupation of selling intoxicants in violation of the local option law. While the court’s charge is correct as pertaining to selling, yet appellant was charged with pursuing the business. This charge should have gone further and instructed the jury that if she simply obtained the whisky as an accommodation or as agent of Jones, this could not be considered in the matter of following the business of selling. The trouble with the court’s charge is, it is too restrictive in its limitation. One of the main ' propositions in the case is following the business. While it was necessary to prove two or more sales, still the court’s charge should have also limited the agency to the business. As before stated, if she was procuring it as agent for Jones or as an accommodation to him, that would constitute neither selling nor engaging in the business of selling.

Another charge was given by the court in the following language: “In this case certain evidence was introduced before you tending to prove the presence of certain concealed intoxicating liquors, on the defendant’s premises, other than those liquors alleged to have been sold and delivered to the persons named in the indictment, and you are instructed that you can only consider such evidence, if at all, in determining whether or not defendant was engaged in pursuing the occupation and business alleged in the indictment, and you will not consider the same as tending to prove any of the specific sales set out in the indictment.” This charge is seriously attacked on various grounds for various reasons. This is the intoxicating liquor claimed to have been found by the sheriff under the room at appellant’s house after she was arrested, and for whom she sought a continuance for the absent witnesses to disprove or show that she was not in possession of the liquor and that it was not her whisky. She did to some extent prove she had not shipped whisky except on certain occasions into that territory, none of which was included in the whisky found under the room in the house. It is not necessary to discuss that phase of the -testimony which shows the amount of whisky she shipped, and the whys and wherefores. It did not enter into this particular case, except this whisky was not included. The sheriff testified he found a certain number of bottles of whisky under the house that were old and covered with dust; that it had been there a good while. Appellant denied knowing anything about it, and also that she had any connection with it. By her testimony she relieved herself of all connection with the whisky. Whether the jury believed this or not is not the question here; or whether they believed the sheriff or not is not the question, so far as this charge is concerned. The court instructed the jury they could consider this evidence in determining whether or not defendant was engaged in pursuing the occupation or business of selling intoxicating liquors. If she had shipped the whisky, or it belonged to her, there might not have been so much error in this charge, but she emphatically denied this, and separated herself from any connection with it. If the court saw proper to limit this testimony, or thought it was necessary, he should also have instructed the jury that before they could consider it against her they should also find that she was keeping the whisky there, or it had been placed there by her or at her connivance and authority. If it had been shown that she had whisky placed there or had placed it there herself, it was a circumstance, but if she did not, and had nothing to do with placing it there, then it was not a circumstance, against her. She testified she had nothing to do with it, and was not aware of its presence. The sheriff did not say she placed it there; he only stated he found it there. This charge was on the weight of the evidence, was unfair to defendant, and evidently left the impression upon the minds of the jury that the court believed she put it there, and they could consider it against her in regard to pursuing the business. This was on a crucial point in the case. It was upon the weight of the evidence and ignored her testimony altogether. If upon another trial this matter should be charged to the jury, they must be so charged as not to ignore her testimony in the case; they must first find before they can consider this as a circumstance against her that she was in some way connected with the whisky being at her house.

For the errors indicated the judgment is reversed, and the cause is remanded.

PR.ENDER.GAST, P. J., and HARPER, J.

We concur in reversing and remanding this cause on account of two errors in the charge of the court. One is that Sheriff Burwell testified to finding 45 pints of whis-ky under the floor of appellant’s house; she testified that she had rented this room, under the floor of which the whisky was found, to one Geo. Jackson, and he was occupying the room, and she did not know this whis-ky was there. The court instructed the jury they could consider this testimony in determining whether or not she was engaged in pursuing the occupation or business. Appellant raised the issue she did not know the whisky was under the floor, and the charge of the court should have instructed the jury that if the whisky was owned by Jackson, or any other person than appellant, and it was placed there without her knowledge or consent, it could not be considered against her for any purpose; that if they believed the whisky belonged to appellant and was placed there by her, or with her knowledge, then it could be considered in passing on the issue of whether or not she was engaged in the business.

Again, in limiting the testimony as to sales alleged to have been made to Harbour Jones, the court instructed the jury if they believed that appellant acted as agent in procuring the whisky for Jones, she would not be guilty of making a sale to him, but permitted such testimony to be considered in passing on whether or not she was engaged in the occupation. Appellant requested a charge that if she acted as agent in procuring this whisky, same could not be considered as evidence that she was engaged in the business, and this should have been given.

In the light of the testimony we do not think the court erred in overruling the motion for a continuance, nor the application for a change of venue; nor do we think any other errors were committed in the trial other than the two above mentioned, and we concur in the reversal solely on that ground, and do not concur in the remainder of the opinion.


author: HAWKINS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BEASLEY et al.
    (Supreme Court of Texas.
    Nov. 5, 1913.)
    On motion for rehearing.
    Denied.
    For former opinion, see 155 S. W. 183.
   HAWKINS, J.

The members of this court are unanimous in overruling the motion of appellee Beasley for a rehearing. We all adhere to our former conclusion that the charge to the jury in this case upon the measure of damages “would permit, but does not require, the jury to give double compensation for lost time.” 155 S. W. 183. My Brethren do not desire to say anything further in the premises.

However, the importance of the question involved, the frequency of its recurrence in the courts, and the status of the decisions in this state upon the point impel me to say this in agreeing to the above-mentioned action upon said motion:

1. This case comes to us upon certified questions from a Court of Civil Appeals, and not upon an application for a writ of error. Consequently the ultimate question as to the effect of the charge upon the measure of damages is not now before us, and must, be relegated to the Court of Civil Appeals.

2. I think that under the decisions of several Courts of Civil Appeals and of this court, bearing upon the point involved, that question, as it is applicable to the facts and circumstances of this case, is, perhaps, an open one in this state. The transcript shows that no special charge relating to double damages, or to the measure of damages, was requested by appellant.


author: BROWN, C. J.

text:
    COCHRANE v. WILSON.
    (Supreme Court of Texas.
    Nov. 12, 1913.)
    Appeal and Error (§ 1094) — Mortgages (§ 39) — Findings op Intermedíate Court— CONCLUSIVENESS — ABSOLUTE DEED AS Mortgage.
    The question whether an absolute deed was intended as a deed or mortgage, where the evidence was conflicting, was one of fact for the trial judge; and his finding, approved by the Court of Civil Appeals, is beyond disturbance by the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094; Mortgages, Cent. Dig. §§ 112, 113; Dec. Dig. § 39.]
    Appeal from Court of Civil Appeals of Second Supreme Judicial District.
    Action by E. B. Wilson against Joseph Cochrane. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 136 S. W. 531.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant. Henry S. Paulus, of Yoakum, and C. G. Krueger, of Bellville, for appellee.

      For other cases see same toDic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

The dates of transae.tions involved in this proceeding are not important Therefore I shall not undertake to give the dates of the different conveyances, unless there be some reason for doing so. In 1871 or 1872 Mr. Cuny sold to Joseph Cochrane, plaintiff in error, 50 acres of land situated in Austin county, and took his note or notes for the purchase price, $550, reserving vendor’s lien. Cochrane went into possession of the land and cultivated it for a number of. years, but failed to pay the purchase money. Cuny transferred the note to Jesse O’Bryant. The note still remained unpaid for some years. Cochrane and his wife, still occupying the place, executed a deed by which they conveyed the land to O’Bryant in satisfaction of the note executed to Cuny, but remained in possession of the land as tenants of O’Bryant, who some years later sold the land to Cochrane, making him a deed thereto and reserving a lien for the purchase price, secured by eight notes, in the sum of $1,400.

Cuny failed to pay the notes, and O’Bryant brought this suit to foreclose his vendor’s lien on the land. Joseph Cochrane denied that the notes sued upon were given for the purchase money of the land, claiming that the deed which he made to O’Bryant, conveying the land, was intended as a mortgage to secure the purchase-money note, and that he did not intend to convey the land by the said deed. The only evidence that we find which tended to prove that the deed was intended as a mortgage is the statement of Joseph Cochrane himself, and a statement made by a notary public who took the acknowledgment of Cochrane and his wife to the deed, who said that he understood that the deed was a mortgage to secure the notes . on the land; but there is no evidence that O’Bryant was present at the time this declaration was made, or that any person ever suggested to O’Bryant that the deed was not intended to convey the land. We have condensed this statement, but it presents the substance of the evidence on the issue of mortgage or not. It is true that great indulgence was shown to Cochrane by the different parties to whom he owed the debt, but there is no evidence that either of them ever recognized the claim that the deed made to O’Bryant was intended as a mortgage.

The attitude of this case is that the only material question for consideration is whether or not the deed which Cochrane made to O’Bryant was a conveyance of the land or a mortgage to secure the purchase money. This presents strictly and purely a question of fact, and depends upon the weight which the judge who tried the case gave to the testimony presented by each side. There are some questions raised in addition to the one that is presented in this statement, but they are of no importance in deciding the one issue which controls.

The most favorable view of the evidence for plaintiff in error is that the judge of the district court might have found and held that the deed from Cochrane to O’Bryant was a mortgage and did not pass the title to the land. But it is undoubtedly the law that under the evidence the judge could find, as he did, that the deed in question was not intended to be a mortgage, and that it passed title to O’Bryant, and, so finding, he properly gave the judgment that was entered. Being purely a question of fact, this court cannot disturb the finding and judgment of the Court of Civil Appeals (136 S. W. 531). In such conflict of evidence, the conclusions of the Court of Civil Appeals are final. This couyt has no power to overrule the conclusions so reached.

The judgments of the district court and Court of Civil Appeals are affirmed.


author: TALIAFERRO, J.

text:
    ZIMMERMAN et al. v. BAUGH.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 12, 1913.)
    Appeal and Error (§ 797*) — Motion to Dismiss-Time for Filing.
    A motion to dismiss an appeal, because the petition for writ of error was not signed, came too late, when not filed within 30 days after the transcript was filed, as required by Court of Civil Appeals rule 8 (142 S. W. xi); failure to sign the petition not being jurisdictional.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dee. Dig. § 797.*]
    Error to District Court, Bexar County; A. W. Seeligson, Judge.
    Action between Bridget Zimmerman and others and W. Pauline Baugh. From the judgment the parties first named brought error and the cause was dismissed without opinion.
    Dismissal set aside and cause reinstated on motion for rehearing.
    Don A. Bliss, of San Antonio, for plaintiff in error.
   TALIAFERRO, J.

This is upon motion to reinstate this cause, which, at a previous day of this term, was dismissed (no written opinion filed) upon motion of defendant in error because the petition for writ of error was not signed by the petitioners or their attorney, as the law requires. We find that no motion to dismiss the appeal was filed within 30 days after the transcript was filed in this court, as required by Court of Civil Appeals rule No. 8 (142 S. W. xi); and, since the failure to sign the petition for writ of error is not jurisdictional, we conclude that the motion to dismiss came too late.

The motion for rehearing is therefore granted, the order of dismissal is set aside, and the cause is reinstated.


author: HIGGINS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. DOOLEY.
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 23, 1913.
    On Rehearing, Nov. 20, 1913.)
    1. Evidence (§ 142) — Other Sales — Condemnation — Damages to Adjacent Property— Evidence op Value.
    In an action for damages from tlie construction of railroad tracks near plaintiff’s city property, evidence of the price paid by another for other property in the same block and of an offer received on same is properly _ excluded, where the various matters entering into the value of the two properties are very dissimilar.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dee. Dig. § 142.]
    2. Appeal and Error (§ 1058) — Harmless Error — Exclusion of Evidence.
    The exclusion of defendant's evidence of value in an action for injuries to nearby property from the construction of railway tracks, if error, was harmless, where the value of plaintiff’s property before and after the construction was fully developed by defendant’s other evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200^204, 4206; Dec. Dig. § 1058.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action .by Francis F. Dooley against the Houston Belt & Terminal Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    Andrews, Ball & Streetman, of Houston, for appellant. S. H. Brashear, of Houston, for appellee.

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This suit was Drought by Francis F. Dooley, plaintiff, against the Houston Belt & Terminal Railway Company, defendant, to recover damages alleged to have been sustained by her by reason of the construction of railroad tracks near certain property owned by her at the intersection of Texas and Hutchins streets in the city of Houston, and the operation of trains thereon, and the alleged consequent depreciation in value of said premises. Upon trial before a jury a verdict in plaintiff’s favor was returned in the sum of $750, upon which judgment was rendered, and from which this appeal is prosecuted.

There is but one assignment of error in the record. This complains of the exclusion of certain testimony of defendant’s witness Kapner, upon direct examination, as to the price paid by him and Captain James A. Baker for certain property situate in the same block in which plaintiff’s property was situate, and of an offer to purchase the same which they thereafter received. The witness, if permitted to do so, would have testified that he and Captain Baker paid $1,500 for .their property a few months before the laying of defendant’s tracks, and that just after the tracks were placed there and trains operating thereon, he and Captain Baker were offered $10,000 for the three lots owned by them. There is a marked conflict of opinion as to the competency of evidence of the character noted, upon direct examination, to show the market value of a particular tract of land. In some jurisdictions the evidence is admissible, provided the sales or offers of purchase were made sufficiently near the time at which the value of the land in question is to be determined, and the lands present the same similarity of condition as respects the elements affecting value. It was so held by the San Antonio Court of Civil Appeals in the case of Sullivan v. Railway Company, 29 Tex. Civ. App. 429, 68 S. W. 745. Under the evidence here it does not occur to us that the various matters which should be considered in estimating values with reference to plaintiff’s property and the Kapner property were so similar as to authorize the admission of. the testimony referred to. Newbold v. Railway Co., 34 Tex. Civ. App. 525, 78 S. W. 1079; Dennis v. Ry. Co. (Tex. Civ. App.) 94 S. W. 1092; Kirby v. Ry. Co., 39 Tex. Civ. App. 252, 88 S. W. 281; Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68; Haney v. Clark, 65 Tex. 93.

Furthermore, there is a mass of opinion testimony in the record offered in behalf of the appellant by real estate men, showing the value of plaintiff’s property before and after the construction of the railway tracks and operation of trains thereon, and in this respect the case seems to have been most fully developed. In this state of the record this court is not of the opinion that the exclusion of the testimony, if conceded to be erroneous, was such a denial of appellant’s rights as was reasonably calculated to cause the rendition of an improper judgment, and probably did not cause the rendition of an improper judgment, and, under the provisions of rule 62a for the government of the Courts of Civil Appeals (149 S. W. x), the judgment should be affirmed.

It is therefore so ordered.

On Rehearing.

Appellant criticizes the statement in the original opinion of the scope of the assignment of error, urged. Our statement of the complaint made was based upon the bill of exception, to which we are referred by the assignment, and the bill of exception complains of the exclusion of testimony, as stated in the opinion. However, the propositions presented in the brief do not relate to all of the excluded testimony, and it seems that appellant’s complaint was directed only to the exclusion of testimony of Kapner, as to the price paid by him for property situate in the same block in which plaintiff’s property was situate, before the tracks complained of were constructed. In deference to appellant’s request that we correct our statement of the complaint made by them, we now do so as indicated.

We adhere to the view, however, that the exclusion of the testimony, if conceded to be erroneous, was not such a denial of appellant’s rights as was reasonably calculated to cause the rendition of an improper judgment, and that same probably did not so operate. The motion for rehearing is therefore overruled.


author: HUFF, C. J.

text:
    RILEY v. GULF, C. & S. F. RY. CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1913.)
    1. Railroads .(§ 276) — Injuries to Trespassers — Duties towards Trespasser.
    A railroad company was under no legal obligation to call in a physician or to care for a trespasser injured while attempting to steal a ride on its freight train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 878-886; Dee. Dig. § 276.]
    2. Negligence (§ 2) — Elements — Absence of Duty.
    Legal responsibility for negligence does not exist in the absence of duty of care; the liability in any case depending on the scope of the correlative duty.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 3, 4; Dec. Dig. § 2.]
    3. Master and Servant (§ 302) — Injuries to Third Person — Scope of Employment.
    Where the employés of a railroad company attempted to care for a trespasser injured while attempting to steal a ride, they were acting outside the scope of their employment, and in the absence of express authority the railroad company was not liable for their failure to exercise reasonable judgment or care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217 — 1221, 1225, 1229; Dec. Dig. § 302.]
    Appeal from District Court, Cooke County; Robert H. Hopkins, Judge.
    Action by W. J. Riley, as next friend for Oscar Riley, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals.
    Affirmed.
    Potter, Culp & Culp, of Gainesville, for appellant. Garnett & Garnett, of Gainesville, and A. H. Gulwell and Terry, Cavin & Mills, all of Galveston, for appellee.

      For other eases see same topie and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

For a statement of the appellant’s petition and the facts, we accept the statement as made in his brief:

“Plaintiff alleges in his petition: That while his son, Oscar, was trying to board one of defendant’s freight trains at Thaeker-ville, Okl., for the purpose of coming to Gainesville, Tex., his foot was mashed and broken. That his said son at once sent for a physician, but that the messenger was wrongfully delayed by the crew in charge of said train, to give information as to the nature and cause of the injury, and for- that reason the physician did not reach the said Oscar for some 30 or 40 minutes later than he otherwise would have done. That soon after the injury was inflicted the crew in charge of defendant’s train took charge of said Oscar and moved him into the caboose attached to said train where he was when the physician reached there. That the parties in charge of said train were going to take the said Oscar immediately to Gainesville to the hospital and directed the said physician to only give the said Oscar’s foot a hurried dressing and try to ease the pain until they could get him to the hospital, where his foot would have proper dressing. But for this direction the physician would have given said' foot a thorough and proper dressing. That, after the foot was so hurriedly dressed, the parties in charge of said train removed the said Oscar from the caboose and left him on the platform of the railroad station at Thack-erville, while the train proceeded to Gaines-ville, and the said Oscar was afterwards put upon the north-bound passenger train and carried to his home at Ardmore. That on account of the long delay in getting the physician and on account of the hurried, improper, and insufficient dressing given the foot by the physician acting under the directions of the defendant’s servants, the foot became so infected before it had proper medical attention,' which it did not have until after the arrival at Ardmore, that it became necessary to amputate the same, and on account thereof the. said Oscar lost the entire foot.

“feaymond Pyatt testified: That he was with Oscar Riley at Thackerville when he received the injury. That they had boarded one of defendant’s trains at Ardmore coming south. When it reached Thackerville they got off and waited until they thought the train was about ready to start, when they attempted to board the train again. That he saw the said Oscar fall or jump from the train, then he got off. It was dark or about dark. That he went to where the said Oscar was and found him sitting on the ground holding his foot. He told him to go for a physician. He started in a run for a physician in the town of Thackerville. That he was stopped by a railroad man; that is, he had a lantern and a badge. This party began to question him about what the matter was, how the boy got hurt, etc., and where he was going. That he attempted to pass on a time or two but the man detained him, at one time taking him by the hand and pulling him to one side. ‘He detained me 30 or 40 minutes.’ That when he was permitted to pass he ran on to the town, got a physician, and returned. He found Oscar had been removed into the caboose. The train crew and several other persons were in there. The conductor and others told the doctor to hurry up and dress the foot; that they were going to take him to the hospital in Gainesville. The doctor said the foot should be cleansed and dressed properly, and the conductor told him to dress it hurriedly; that they would take him to Gainesville and dress it properly. The doctor was about five minutes in dressing the foot. While he was dressing it the rail-' road man kept telling him to hurry. ‘After the doctor got through they had some kind of a statement signed by me and Oscar; then they took Oscar out of the caboose. They said they had received a message from the chief dispatcher to send him to Ardmore. The train that the caboose was on, in which Oscar’s foot was dressed, went on to Gaines-ville. It was the same train we were riding on. His foot was still bleeding while he was on the platform. I saw the blood running out of the bandage. Oscar remained on the platform from between 7 o’clock until 11 o’clock.’
“Oscar Riley testified that he is now 18 years of age. T remember being hurt at Thackerville in September last year. My foot got caught between the brake and the wheel while I was trying to get on the freight car. When I got my foot loose I jumped off. I then halloed for Raymond Pyatt. When he got to me I was sitting on the ground holding my foot. I told him to go for a doctor as quick as he could, and he started off. I remained on the ground about 15 minutes, when the train crew found me. They put me in the. caboose. The caboose was north of where I was lying. They put me on a cushion and laid me down on the floor of the caboose. I do not remember what they said exactly, but they asked me lots of questions. The doctor finally came. When the doctor came the conductor told him to give my foot a temporary dressing right quick, as they would carry me on to Gainesville to the hospital. The doctor .said he could save the heel by cutting the foot off right then. The conductor said: “No, go ahead and give it a temporary dressing as quick ‘as you can; we will carry him to the hospital.” After my foot was dressed the crew took me to the platform of the depot. They told me they were going to send me to Ardmore on that 12 o’clock train. They said they had wired the train dispatcher and he said to send me to Ardmore on that 12 o’clock train. I never knew I was to be sent to Ardmore until after my foot was dressed. As soon as they put me on the platform this train pulled out going south. The doctor came around to see me twice while I was on the platrorm. He gave me two hypodermics to relieve my pain but it did not relieve it much. My right foot was cut off, about two days after I got home, about four inches below the knee.’
“Dr. Cox testified: That he resides at Ardmore. That he is a physician and surgeon. That he was at the train with Oscar’s father the night Oscar was brought up from Thackerville on the train. Saw him in the baggage car. He was resting on some cushions about middle way of the car. His foot had been bleeding so much that the blood ran to the door. T examined the wound after we got him to the house. I found it mashed and lacerated and the bones crushed. It was in bad condition. It was just dressed with a bandage, just wrapped up. It did not seem to have been cleansed. I found dirt, coal dust, and things like that in it. It is always better for an injury of this sort to be dressed quick. The sooner it is dressed the better. It would have been better if this foot could have been dressed 30’ or 40 minutes after the injury. Leaving it exposed for several hours with the cinders in it would cause the wound to have less resistance and less power to throw off anything that might set in. Dr. Booth and I thought when we dressed it that there was some chance to save the foot, but the probabilities of saving it at that time were not so good as they would have been had the foot been dressed 30 or 40 minutes after the accident. In dressing the wound we cleansed it out and took out all the coal dust and removed the shattered bones we could find and drew the parts together.’ ”

It is admitted that the son of appellant was a trespasser on appellee’s train at the time of his injury and that his injury was not caused by the negligence of appellee or its employSs. After the introduction of this evidence, the appellee moved the court to instruct a verdict for it. The court sustained the motion and instructed the jury to return a verdict for the' defendant, the ap-pellee herein, which action of the court is assigned as error in this court.

Appellant presents thereunder the following proposition: “The defendant’s servants in charge of its train, having undertaken to care for the minor, Oscar Riley, after his injury had been received, were required by tlie law to use reasonable care in doing so, though he was a trespasser at the time he received the injury and their failure to use such care renders the appellee liable for damages for such failure.”

The son of appellant was injured while trespassing and in attempting to steal a ride on the freight train of appellee. Under the facts, appellee was under no legal obligation to call in a physician. or to care for him while injured. Wills v. I. & G. N. R. R. Co., 41 Tex. Civ. App. 58, 92 S. W. 273.

Legal responsibility for negligence does not exist in the absence of duty of care, and, upon the scope of the correlative duty in any case, the question of the liability for negligence depends.

If there was no legal duty imposed upon the appellee to care for the son of appellant, the employés of appellee could not, without authority from their employer, assume such care, and, if they failed to exercise reasonable judgment or care, this would not create a liability against appellee for injuries sustained by reason thereof. A railway company is under no legal obligation to furnish care for an injured employé inflicted while engaged in his duties for the company. This is held by several courts and by our own. It has been held in cases of emergency demanding immediate attention that the conductor or other subordinates may, in the absence of some higher authority, act for the company in securing medical aid or assist-tance and thereby create a legal liability against the company. But we believe it will be found in all cases so holding that liability rests on the ground that “an employer does not stand to his servants as a stranger; he owes them a duty.” Terre Haute & Indianapolis R. R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752; Texas Building Co. v. Albert et al., 57 Tex. Civ. App. 638, 123 S. W. 716. In cases of the class mentioned, the liability is declared because of emergency, and the authority of the conductor or other subordinate is implied.

We cannot assent to appellant’s proposition. Admitting that, if the appellee had taken charge of the boy and undertook to care for him, we think the evidence fails to show that appellee so took charge of him. The fact that the train crew did so does not establish that they were acting for the railroad. The conductor or the train crew had no authority to bind the company for their negligent acts while acting outside of the scope of their employment, unless express authority is given or is necessarily implied. It is well settled that there is no duty resting on appellee to care for the boy who was a trespasser and who was injured through no fault of the appellee. Wills v. I. & G. N. R. R. Co., supra. When the employés in this case assisted the boy, they did so from no legal obligation imposed on the company but evidently did so from a humane or moral duty. It was outside the scope of their employment and was therefore a personal act, and in performing that act the company is not liable if the servants failed to use reasonable judgment or care in affording necessary medical assistance. Adams v. Southern Ry. Co., 125 N. O. 565, 34 S. E. 642. “It is a general rule that a railroad company not negligent in injuring a trespasser cannot be made liable on the ground that its servants were negligent in caring for him after the accident. The railroad company is under no legal obligation to take charge of the wounded man, however strong a moral obligation may be.” Elliott on Railroads, vol. 3 (2d Ed.) § 1265i.

The appellant relies on the case of Railway Co. v. State, 29 Md. 420, 96 Am. Dec. 545. Text-writers and the courts, in discussing that case, approve it upon the ground that there was evidence of negligence on the part of the railroad in striking a man at a highway crossing. This being so, the duty of taking care of the man aftefwards resulted from the legal wrong done. Griswold v. Boston & M. R. R. Co., 183 Mass. 434, 67 N. E. 354; Union Pacific v. Cappier, 66 Kan. 649, 72 Pac. 281, 69 L. R. A. 513; Elliott on Railroads, supra.

If a railroad is to be made liable for the negligent act of its employés in caring for an injured trespasser, when in the first instance the company is not legally liable, it would discourage humane or generous acts on the part of employés. “It is a doctrine which would allow an action against a good Samaritan and let a priest and a Levite go free.” Griswold v. Boston & M. R. R. Co., supra.

We think the trial court properly sustained the motion to instruct a verdict for the appellee. The judgment is affirmed.