author: PRENDERGAST, P. J.

text:
    FURNACE v. STATE.
    (No. 3874.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Criminal Daw &wkey;>594 — Continuance — Discretion of Court.
    Defendant is not entitled to continuance as a matter of right for the absence of a witness, but his application is addressed to the sound discretion of the trial court.
    [Ed. Note. — For other cases, see Criminal Daw, Cent.Dig. §§ 1321,1322,1332; Dec.Dig. &wkey;594.]
    2. Criminal Daw <&wkey;594 — Continuance — Absence of Witness — Diligence.
    Where defendant was immediately arrested upon killing deceased, and indicted in 12 days, but for more than 3 weeks made no application for process for a witness, who had left for California, not showing in his application for continuance any reason why process was not sooner issued, or when the witness left for California, or that defendant did not know he was going to leave, defendant was not entitled to continuance for absence of the witness for want of diligence.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. &wkey;s594.]
    3. Criminal Daw <&wkey;597 — Appeal—Review-Refusal of Continuance.
    The appellate court will not reverse a conviction for a refusal of continuance for absence of a witness, unless, in connection with the evidence adduced on trial it is impressed that if the absent testimony, relevant, material, and probably true, had been before the jury, a verdict more favorable to defendant would have resulted.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1331, 1332; Dee. Dig. <&wkey;> 597.]
    4. Criminal Daw <&wkey;1144 — Review — Presumptions.
    Where the testimony heard by the court in acting on a contested motion for new trial is not in the record, the appellate court must conclude that the trial judge was justified in refusing new trial on the grounds assigned.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dee. Dig. &wkey;1144.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.

      R. L. Furnace was convicted of murder, and he appeals.
    Affirmed.
    J. H. Evetts and J. F. Hair, both of Bel-ton, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of Charlie White; and his punishment assessed at life imprisonment. There is practically no conflict in the testimony on any material issue in the case. Every material fact is established by uneontroverted testimony. Whatever conflict there is is merely of some incidental matter, which did not affect the case materially one way or another.

For several years prior to this homicide, appellant was a partner in the saloon business in Belton, and lived in Belton with his family. He was about his saloon almost continuously while he was a proprietor thereof, though he did very little, if anything, in running it. During all these years he was a continuous and heavy drinker, so much so that in- April, two years before this homicide in July, 1915, he .was afflicted because thereof with delirium tremens. While this spell was on him, he was crazed thereby. The doctors at the time treated him for delirium tremens, and soon got him in a condition where, as they say, they sent him to Marlin to be treated with hot water, and this treatment boiled the whisky out of him. He got over the delirium tremens, and thereafter was a changed man, so far as his drinking and drunkenness was concerned, tie realized the effect that his drinking had upon him, and as soon as he returned from Marlin sold out his interest in the saloon and quit* that business. He thereupon moved some distance from Belton to the country on his farm and farmed thereafter. It appears that from this time on he never drank any.

He and Mr. WThite, the deceased, lived near neighbors in the country and had been acquainted with one another for a long time. Mr. White represented him in some trade, and thereupon claimed a commission from appellant. This was the cause of an estrangement between them, and some hostility was engendered by appellant against Mr. White. Shortly before the killing a yearling belonging to another was seen in appellant’s pasture. It disappeared at such a time and in such a way as to lead to suspicion and perhaps some talk or inference that appellant had stolen the animal. Appellant was informed of this rumor or talk. He thereupon presumably armed himself and hunted up Mr. Russell, who had inquired of him for the yearling, but who did not get it. Appellant found Russell in Russell’s field, and told him that he had come to settle with him, forbade him to come closer to him, put his hand in his shirt bosom, and told him that he had been accused of being a cow thief, and had not heard it until the day before, and the effect of his accusation at the time was to accuse Russell of having made said accusation against him. It seems that Russell satisfied him at the time that he had made no such accus'ation. He thereupon inquired what White, deceased, had said about it. Among other things, he told Russell at the time that he had once been prosecuted for horse theft, and said as he left Russell he would find the son of a bitch that started that joke. He then suspected White was the man who was instrumental in having such accusation of the theft of the yearling rumored against him. It was shown that a few days before the killing appellant passed back and forth in front of Mr. White’s residence, apparently looking for him, but Mr. White was not at home at the time.

Mr. Warren, a deputy constable at Belton, testified that some days before the killing appellant came to him and asked for Mr. Messer, the constable for whom he was deputy, and then told him (Warren) that, if anything happened out where he lived, to tell Hugh Smith, the sheriff, not to be uneasy— that he would answer. Mr. Walker testified that some days before the killing he was going to town with appellant, and talked to him about the rumor that he had stolen said yearling; that this seemed to “rile” him, and after talking about it some time appellant said, “I will kill the son of a bitch that started it.” Mr. Hemphill, one of appellant’s witnesses, on cross-examination, testified that about 30 minutes before the killing he had a talk with appellant, wherein appellant told him that he had gone down to kill one man about the rumor that he had stolen said yearling, but that that man came clean with him and he did not kill him, and that another man had lied to him about it.

For a short time before the killing the deceased was shown to have been standing on the sidewalk in front of a saloon in Belton talking with friends, and that appellant is placed in such a position as would show that he saw and knew that White was there. The evidence clearly shows, however, that White knew nothing about the proximity of appellant. The testimony then shows that appellant approached deceased from out in the street, or square, going directly towards deceased. All the testimony shows that appellant fired his pistol twice at deceased; the second shot immediately following the first. Mr. Walker testified that at the time of the first shot he had just walked up to deceased and was shaking hands with him; that they had their right hands clasped in this greeting, and that he had his left hand on deceased’s right shoulder, and that at the time the first shot was fired deceased was looking at the witness. Mr. Springer testified that he was standing in the company with White at the time, and as appellant walked up he (Springer) went to shake hands with appellant, but appellant said, “Step back, boys; I want to kill that son' of a bitcli,” and immediately fired tbe first shot at White; that the witness threw up his hand, struck appellant’s pistol, knocked it up so that the first shot went wide of its mark and above the door. Mr. Tarrant, who was one of the company about White at the time, testified that the first shot was what attracted his attention; that appellant said nothing to Mr. White before he heard the first shot, and then, just after he fired the first shot, appellant said to White, “It is you I am after;” that at this time Mr. White was going from appellant, running into the saloon; and that then appellant deliberately grasped his pistol with both hands and shot White in the back, after he had gotten into the saloon, from which he very soon died.

Appellant’s sole defense was that he claimed he was insane at the time. It was shown, and not disputed, that the only time appellant was insane was in April, some two years before the killing, when he had a spell of delirium tremens. The undisputed testimony shows that, upon treatment by the doctors and the boiling out at Marlin, he was cured of delirium tremens, and never thereafter was so afflicted, and never at any time was insane. Dr. McElhannon and appellant’s brother-in-law, Dr. "Alsup, were shown to have been ’ his family physicians from the time he was afflicted with delirium tremens, and no one else is shown to have been his physician during that time, or that of his family. Some six months before the killing, appellant had a little son die, to whom he was much attached. When the child first became sick, the other members of his family wanted him to call in a physician, but he refused, thinking the child was not sick enough’ for that. The child growing worse, however, he later consented to send for a physician, and did so, sending for his family physician, Dr. McElhannon, and his brother-in-law, Dr. Alsup. They at once advised him of the very serious illness of his child, and that they thought it would result fatally. It did so result very soon. Appellant became much depressed on the loss of this child, and •the remorse that he had because he did not sooner send for a physician, or consent that one be sent for, blaming himself, and expressing himself that, if he had done so in time, the child probably would not have died.

Appellant not only introduced as his witnesses the said Dr. McElhannon, but also Mr. J. F. Alsup, his father-in-law, Mrs. Kel-so, his daughter, Dr. Alsup, his brother-in-law, his wife, his brother, Jim Furnace, another grown daughter, and his sister on the question of his claimed insanity. Not a single one of them would testify that he was insane, and not a single one of them did testify that he was insane.

The state had Dr. Barton, an expert physician, present, who heard all of the testimony on the issue of insanity, and he swore:

“If the symptoms which the witnesses testified to have been proven, and if the jury believe these symptoms existed and were true, in my opinion there is no evidence in this case that shows that the defendant was insane at the time he committed the act.”

On cross-examination, he said that from his actions, as told about by the witnesses, he would say that appellant was not insane; that he came to his conclusion after he hoard all the facts.

Appellant made a motion for a continuance on account of the absence of Dr. Batte, a resident of Bell county,. but who was not present, and who had not been subpoenaed. He alleged in his motion that Dr. Batte had been his physician for a number of years, and, if present, would testify that about two years before, and for a considerable length of time, appellant’s mind was totally deranged, and that at times since then up to and immediately preceding the homicide he was subject to illusions and hallucinations and at times irresponsible for the acts he committed, and that, if appellant was greatly worried or subjected to grief or sorrow, his reason would be dethroned, and he would temporarily be insane.

In the recent case of Stacy v. State, 177 S. W. 114, we had occasion to fully investigate and discuss the question of the diligence which must be used by an accused to entitle him to a continuance. We can do no better than to here copy what we there said, which is the law of this state. It is:

“It is the settled law of this state, both by statute and all the decisions, that an accused is .not entitled as a matter of right to a continuance ; that the truth of his application therefor, as well as the merits of the ground and its sufficiency, is addressed to the sound discretion of the trial court. It is also statutory, as well as in accordance with the decisions, that before an accused can get a continuance he must affirmatively show that he has used due diligence to procure the attendance of his claimed absent witness. Judge White says: ‘Diligence in securing the attendance of a witness is in the highest degree essential; and the continuance should invariably be refused when the want of diligence amounts to pure negligence. Greenwood v. State, 9 Tex. App. 638.’ Section GOO, White’s Ann. O. O. P. ‘Continuance is properly refused always where there is a want of diligence. O’Neal v. State, 14 Tex. App. 582; Hart v. State, 14 Tex. App. 657; Childers v. State, 16 Tex. App. 524; Hawkins v. State, 17 Tex. App. 593, 50 Am. Rep. 129; Timbrook v. State, 18 Tex. App. 1; Barrett v. State, 18 Tex. App. 64; Bond v. State, 20 Tex. App. 421; Moseley v. State, 25 Tex. App. 515, 8 S. W. 652; Stegall v. State, 32 Tex. Cr. R. 100, 22 S. W. 146, 40 Am. St. Rep. 761; Underwood v. State, 38 Tex. Cr. R. 193, 41 S. W. 618; Henry v. State, 38 Tex. Cr. R. 306, 42 S. W. 559.’
“This court, in Skipworth v. State, 8 Tex. App. 139, said: ‘The law requires of the defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise, * * * its mandate is inexorable and the trial must proceed.’ In Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note, this court said: ‘We know of no rule of law which requires the state to show a want of diligence in opposition to a continuance. It devolves upon tie defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law.’ In Long v. State, 17 Tex. App. 129, this court said: ‘The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. * * * The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments.’ In Massie v. State, 30 Tex. App. 67, 16 S. W. 771, this court said: ‘Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself, in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same.’ ”

There can be no question but that this record clearly shows that appellant used no diligence whatever to get this witness, and is not entitled to a new trial because a continuance was refused him. He hilled deceased on July 10, 1915. He was at once arrested. The grand jury returned an indictment against him July 22d. He made no application for process for Dr. Batte until August 14th, more than three weeks after he was indicted. Neither his application nor his bill shows any reason why process was not sooner issued for this witness. He does not show when this witness left Belton for California, but he alleges that he left “on or about the - day of -, 1915.” He does not show that he did not know that he was going to leave at any time. Hence the court committed no error in overruling his motion for a continuance, because no diligence whatever was shown to have been used by him to procure the attendance of Dr. Batte.

Again, Judge White, in section 599 of his Ann. C. C. P., says:

“An application for continuance must state the residence of the witness : _ and when it states that a witness is temporarily absent, it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Cr. R. 105, 35 S. W. 648; Vanwey v. State, 41 Tex. 639; Wolf v. State, 4 Tex. App. 332; Thomas v. State, 17 Tex. App. 437; Colton v. State, 7 Tex. App. 50. Where the application for continuance did not show at what time the defendant ascertained that the witness was a resident of the county to which he had a second attachment issued, the diligence was insufficient. Hughes v. State, 18 Tex. App. 130.”

Again, quoting from the Stacy Case, supra:

“Our continuance statute (C. C. P. § 608) further provides that, when an accused’s application for a continuance is overruled, ‘if it appear upon the trial that the evidence of the witness * * * was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted.’ As stated, said statute and the decisions are to the effect, as thus stated by Judge White: ‘The truth, merit, and sufficiency of an application therefor are matters now addressed to the sound discretion of the trial court. Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408.’ Section 620. So that the court, in acting upon the motion for a new trial because of the overruling of appellant’s applications for a continuance, must consider, and we, of course, must presume he did, whether a new trial should be granted under all of the facts of the case. Under such circumstances, among others, Judge White lays down these rules: ‘An application for continuance will be held properly overruled, when, in connection with the evidence adduced on the trial, it is apparent that the proposed absent testimony would not be probably true. * * * ’ Section 643. 'The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. * * * ’ Section 647. ‘The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance, unless in connection with the other evidence adduced on the trial they are impressed with the conviction, not merely that the defendant might probably hs\ve been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more- favorable to the defendant would have resulted. * * • ’ Section 647, par. 2.”

In quoting what Judge White states aS' the rules just above, we have omitted the eases he cites thereunder. They are all cited in the Stacy Case, so that it is needless to again cite them here. We think there can be no question but that under the facts and circumstances of this case the court in no event committed any error in overruling appellant’s motion for a continuance, nor in denying his motion for a new trial because thereof. The trial judge no doubt concluded that Dr. Batte would not testify as appellant alleged he would, and, even if he would have, his testimony would not probably be true. Appellant did not procure any affidavit from, Dr. Batte and attach it to his motion, showing that Dr. Batte would swear what he alleged he would.

Appellant has two bills to very short excerpts from the prosecuting attorney’s argument before the jury. Neither of these presents any reversible error. Bass v. State, 16 Tex. App. 69; Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 227; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; Mooney v. State, 176 S. W. 56. A great many other cases might be cited, but it is unnecessary.

He attacked the verdict of the jury on three grounds. One was he claimed that the jury panel passed and some of them viewed the scene of the homicide, and saw the place where the deceased and the defendant respectively stood when appellant fired the shots, and noticed the door and transom where the bullet went through the glass. His second attack was he claimed that some of the jurors mentioned and discussed the fact that appellant had not testified. And his third attack was that one of the jurors, Mr. Collier, was not competent, in that he was biased and prejudiced against appellant and had so expressed himself before taken, etc. The state vigorously contested appellant’s motion on these grounds, and each of them, alleging that each of said grounds, in whole and in part, were untrue, and tendered proof in support of the denial. It is evident that the court heard testimony when acting on said motion for new trial. What that testimony is the record does not disclose. Hence, under the well-settled rule, we are hound to conclude that the trial judge was clearly justified in refusing a new trial on either and all of said grounds. We see no necessity of discussing this question, nor again collating the authorities. We have often done so.

There is no reversible error presented in this record. We have thoroughly considered the case and the questions presented. The judgment will be affirmed.
      ig^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. BA VID SON, J. HARPER, J.

license: Public Domain

text:
    Ex parte HUTSELL.
    (No. 3677.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    On Motion for Rehearing, Jan. 19, 1916.)
    1. Constitutional Law <&wkey;230 — Licenses <&wkey;7 — Classification—Occupation Tax— “Loan Bboicebs.”
    Acts 84th Leg. c. 28, regulating loan brokers and imposing a tax of $150 per annum, and by section 1 defining “loan brokers” as persons pursuing the business of lending money and taking as security, an assignment of wages, etc., was not invalid because of its exclusion of bankers or other money lenders not pursuing the business of taking such security, etc., as making a capricious or unreasonable classification, since no person pursuing that business is exempted, and none who do not follow that business are required to pay the tax.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 687; Dec. Dig. 4&wkey;230; Licenses, Cent. Dig. §§ 7-15,19; Dec. Dig. <&wkey;>7.]
    2. Licenses <&wkey;7 — Occupation Tax — Validity-Amount.
    Such act, by levying an annual tax of $150 on such loan brokers, is not invalid, as imposing a prohibitive tax.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <&wkey;>7.]
    3. Assignments &wkey;>3 — Regulation — Wages and Household Fueniture — Validity.
    Acts 34th Leg. c. 28, § 11, providing that every assignment or transfer of the salary or wages of a married man and every bill of sale or chattel mortgage upon his household furniture shall be void unless made with the consent of his wife, evidenced by her joinder in the assignment, etc., and the signing of her name thereto and by her separate acknowledgment thereof, is constitutional, as promoting the public welfare and protecting the wife and children in the possession of the homo and its furniture.
    [Ed. Note. — Eor other cases, see Assignments, Cent. Dig. § 5; Dec. Dig. &wkey;>3.]
    4. Constitutional Daw <&wkey;89 — Usury <§=^5 —Regulation — Loans — Constitutionality.
    Acts 34th Leg. c. 28, § 13, making compromises for usury or unlawful interest collected and received void, thereby giving the borrower or debtor a remedy to recover his money back if the broker charges more than the law allows, is not invalid as impairing the right of contract.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. <&wkey;S9; Usury, Dec. Dig. <&wkey;5J
    5. Licenses &wkey;>7 — Loan Brokers — Bond.
    Acts 34th Leg. c. 28, § 2, providing that those engaging in the business of loan brokers on the security of assignments of wages, bills of sale of household furniture, etc., to give bond in the sum of $5,000, conditioned to faithfully comply with every requirement of the law governing such business, and to pay to all persons dealing with them any judgment obtained against them, did not impose an unreasonable requirement; nor was section 5, requiring each loan broker to keep a set of books recording all of his transactions, an unreasonable requirement.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19 ; Dec. Dig. <&wkey;>7.]
    6. Dicenses <&wkey;7 — Loan Brokers — Power op Attobney — Statute.
    Acts 34th Leg. e. 28, § 7, which provides that each loan broker before engaging in business shall file with the county clerk an irrevocable power of attorney, constituting the county judge Ms agent and attorney in fact for the purpose of accepting service for him, construed as limited to service only in transactions growing out of the charging and collecting of unlawful interest in making loans and taking security, was not unconstitutional, even though some of the causes for the recovery of usurious interest might be brought before such county judge.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <&wkey;>7.]
    7. Licenses <&wkey;7 — Loan Brokers — Nonpayment op Judgment — Suspension op Rights — Constitutionality.
    Acts 34th Leg. c. 28, § 8, providing that, if any judgment obtained upon any bond given by a loan broker shall remain unpaid for 60 days, the license to engage in such business shall be suspended until such judgment is paid, and providing a penalty for engaging in such business during the time the law has suspended the license, was within the legislative authority.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <&wkey;>7.]
    8. Licenses c&wkey;7 — Loan Brokebs — Judgment — Collection against Bond.
    Acts 34th Leg. c. 28, providing by section 9 that any judgment obtained against a loan broker should be colle'ctible out of the bond therein provided for conditioned for the faithful compliance with all the requirements of the law governing the business, construed as limited to judgments for debts incident to or growing o.ut of the loan brokerage business, was valid.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    9. Statutes <&wkey;64 — Unconstitutionality in Paet — Effect.
    Under Acts 34th Leg. e. 28, regulating loan brokers, the invalidity of section 9, providing that any judgment against a loan broker should be collectible out of the bond provided in the act, would not invalidate the whole act, where its purpose might be accomplished by making the bond liable under section 2 for all judgments obtained because of a violation of the provisions of the law.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. <&wkey;64.]
    On Motion for Rehearing.
    10. Constitutional Law &wkey;>70 — Wisdom op Law.
    The Court of Criminal Appeals, in determining whether the statute regulating loan brokers (Acts 34th Leg. c. 28), by requiring a bond, power of attorney, annual occupation tax, etc., is constitutional, has nothing to do with the wisdom of the law.
    [Ed. Note. — Eor other cases, see Constitutional Taw, Cent. Dig. §§ 129-132, 137; Dee. Dig. <&wkey; 70.]
    11. Licenses <&wkey;7 — Loan Beokees — Validity-Penalty.
    Acts 34th Leg. c. 28, regulating loan brokers by requiring them to file a bond, a power of attorney, and to pay an annual license tax, etc., is not void because it provides no penalty for its violation, when construed with section 10 thereof, assessing a specific penalty against all persons engaging in the licensed occupation without taking out a license under the law, and in view of the usury laws requiring the receiver of usury to pay back double the interest so collected.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <&wkey;7.]
    12. Licenses <@=»7 — - Occupation — Loan Broker.
    Under such act it is the occupation that one pursues that is licensed and taxed, and not the mere loaning of money on security, and, though one making an occasional loan is not within its provisions, that does not render the act discriminatory.
    [Ed. Note. — Eor other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    13. Licenses <&wkey;7 — Loan Brokers — Statutes.
    Acts 34th Leg. c. 28, regulating loan brokers, and by section 13 declaring that all compromises for usury or unlawful interest collected and received shall be void, is not contrary to public policy.
    [Ed. Note. — For other eases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. <&wkey;>7.] Davidson, J., dissenting.
    Application by James Hutsell for writ of habeas corpus.
    Relator remanded.
    Brooks & Worsham, of Dallas, and Chambers, Watson & Reyes, of San Antonio, for relator. K. C. Barkley, of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Applicant sued out a writ of habeas corpus alleging that complaint had been filed against him charging him with violating the provisions of chapter 28 of the Acts of the Thirty-Fourth Legislature, defining and regulating “loan brokers.” Relator admits he has violated each and every provision of the act, but contends that the law is unconstitutional, and he therefore is entitled to be discharged. Not only does relator admit that he has violated every provision of the act, but the complaint is so drawn as to necessarily bring in review each section of the act. Section 1 provides:

“A ‘loan broker’ is a person, firm or corporation who pursues the business of lending money upon interest and taking as security for the payment of such loan and interest an assignment of wages, or an assignment of wages with power of attorney to collect the same or other order for unpaid chattel mortgage or bill of sale upon household or kitchen furniture.”

It is insisted that, as a banker or other money lender who does not pursue the business of taking as security for money loaned an assignment of wages or a mortgage upon household and kitchen furniture does not come within the provisions of the law, the provisions of the law do not bear equally upon all citizens; that it is a capricious classification and unreasonable regulation of those who pursue this class of business. We are cited to the case of Owens v. State, 53 Tex. Cr. R. 105, 112 S. W. 1075, 126 Am. St. Rep. 772, as sustaining applicant’s contention. In that case the court was passing on a statute which levied a $5,000 occupation tax on persons engaged in the business of purchasing assignments of unearned wages, and which act exempted from the provisions of the -law any person tailing, accepting, or procuring such assignments to pay or secure the purchase price of the necessaries of life, the purchase price of a homestead, or improvements thereon, or any other article necessary to the wage-earner in the pursuit of his employment, or the payment of premiums on life or accident insurance, etc. This act was held unconstitutional: First, because it did not bear equally on all, because of the above-recited exemptions. The act before us exempts no person from- the operation of its provisions, but applies to all who engage in the line of business defined. Second, it was held unconstitutional, in that the $5,000 tax was prohibitive. This act is not prohibitive, for it levies a tax of $150 per annum only, and, if this is a character of business the Legislature has the right to regulate, certainly the amount of the tax levied would not render the act void. There is no evidence offered in this ease that such a tax would be prohibitive.

In the Owens Case, supra, it is said:

“The Legislature may classify the subjects of taxation, and these classifications may, as they will, be more or less arbitrary; but, where the classification is made, all must be subjected to the payment of the tax imposed who, by' the existence of the facts upon which the classification is based, fall within it, unless exempted under some other constitutional provision.”

Tested by this rule of law, and since none doubt its correctness, the act under consideration would not be invalid. All persons, firms, or corporations who pursue the business defined are brought within its provisions; no person pursuing that business is exempted from the operation of the law, and none who do not follow that occupation are required to pay the tax. It is levied on all who pursue that line of business. While a banker, or other money lender, who does not follow this occupation is not liable to the tax, the very moment the banker or any other money lender does engage in this occupation he becomes subject to the tax and all provisions of the law. We do not think it a capricious classification; for it selects a well-defined class, men engaged in a specific character of business, and places all within this class under the operation of the law.

Our laws have exempted from attachment, garnishment, and forced sale household and kitchen furniture, current wages, and the tools of one’s trade, and no one now questions the validity of such laws. They were passed to protect the laborer and the families of the citizenship of the state, that they might not become dependent upon the state. To go one step further and say that a man should not take a mortgage on wages and household and kitchen furniture to secure a debt due him without the husband and wife both agree thereto, and that he must give bond, if such a lien is given, that the creditor will not charge a greater rate of interest than that fixed by law, does not render the law unconstitutional. But it is insisted that a man has the right to do what he pleases with that which belongs to him. This is true unless the public welfare demands that he be restricted in those rights. A man purchases him a farm, and then marries him a wife. The law says the public welfare demands that he shall not be permitted to sell 'this homestead without the consent of his wife; that neither he nor the wife, nor both combined, shall give a mortgage thereon. It is his property; why cannot he sell or mortgage it at will? Because the public welfare demands that he shall not be permitted to do so. The best interests of society require that he give up this much of Ids individual rights. And, if the law can say that he cannot sell the homestead without the consent of the wife, and cannot mortgage it even with her consent, certainly the law can say that he cannot mortgage the furniture within that home without the consent of the wife. To say the law can protect the wife and children in the possession of the home, and not protect them in the possession of the furniture inside of the home, would be an absurdity. And, if it can be said that he cannot mortgage it at all, it can certainly say that he can mortgage it only upon the conditions named in the law.

The contention is made that poor men may need money and have nothing else to give a lien upon. So may the man who only owns a home. There is nothing that is prohibitive in the law; it only requires that the creditor or money lender shall deal fairly with the borrower, and charge no more interest than the Constitution and laws of this state permit. And laws which have heretofore been held valid prohibit him, without the provisions of this statute, from charging more than the law permits, and this statute only gives to borrower or debtor a remedy whereby he can recover his money back provided the lender does charge him more than the law allows. The “right of contract” was impaired, if impaired at all, in providing that the lender should not be allowed to charge more than 10 per cent, interest on the money, and', if he did so charge and collect, even though the borrower had contracted to pay it, the borrower might collect back double the amount so paid. And such law has been held valid. Taylor v. Sturgis, 29 Tex. Civ. App. 270, 68 S. W. 538.

This law simply provides a mode of collection.

The second section, which provides that before engaging in such business one must give bond in the sum of $5,000, conditioned that he will faithfully comply with each and every requirement of the law governing such business, and will pay to the person dealing with such loan broker any judgment that may > be obtained against him, is not an unreasonable requirement, and, if the business is such a business as may be regulated by law, the Legislature had the right to provide that such bond should be given as in the pawnbroker statute, the liquor license statutes, and other similar laws. And it is not an unreasonable requirement that such broker shall keep a set of books in which all his transactions are to be truly recorded.

The section of the law which requires that each loan broker, before engaging in such business, shall file with the county clerk of the- county in which he is engaged in business, an irrevocable power of attorney, constituting the county judge his agent and attorney in fact, for the purpose of accepting service for him, or being served with citation, is not a new provision of law. The law makes an agent of a railroad company such an agent; the statutes require foreign insurance companies to file such power of attorney, constituting a named person its agent to accept service of citation, or person upon whom citation may be served. This is a condition placed by law upon the right to engage in such business, and we must assume, in the absence of any showing to the contrary, that the necessity for such provision existed; otherwise the Legislature would not have so provided. Foreign companies or nonresident persons may be engaged in this character of business in this state, and the Legislature deemed it absolutely essential to the proper enforcement of the law. At least, in the absence of any showing to the contrary, we must presume there existed a necessity therefor, or the Legislature would not have so provided.

The contention that the law should have selected some other person than the county judge is one addressed to the wisdom of the Legislature, and does not affect the constitutionality of the law. The fact that some of the cases for recovery of usurious interest may be brought in the county court does not render the law invalid, even though the county judge should be held disqualified to try the cause by reason of his agency to have citations served on him. The question of whether or not he would be disqualified does not arise in this case; therefore we do not pass on that question, but only the question, if it should be held that it did disqualify him, this would not render the law invalid. There are a number of instances in which trial judges are disqualified, and ample provision is made by the law to select a special judge in such instances.

Section 8 provides that, if any judgment obtained upon any bond given by a loan broker shall remain unpaid for 60 days, the license to engage in such business shall be suspended until such judgment is paid. Again, we think the Legislature had the authority and power to place such restriction in issuing the license. The absolute forfeiture of license has been sustained in this state. And, if the Legislature has the right to declare a forfeiture of the rights under the license, certainly it had authority and the right to declare a suspension of the license and say that any one who continued to pursue the business during the suspension of the license should he guilty of a misdemeanor, and punished by a fine for each and every day the broker should engage in such business during the time the law declares his license shall be suspended, and this section cannot be construed to be imprisonment for debt. The law does not pretend to say he shall be imprisoned if he never pays his debt; it simply says, if he does not pay a judgment obtained under the law, his right to continue in the business shall be suspended, and he shall not engage in such occupation during the time his license is suspended, and provides a penalty, not for failing to pay the debt, but engaging in the business of loan broker during the time the law has suspended its license to engage in such business. If he does not engage in the business while the license is suspended, he cannot under the law be imprisoned if he never pays the judgment and debt.

Section 9 of the law, which provides that “any judgment obtained by any person against a loan broker under these articles or under the laws of the state of Texas, shall be collectible out of the bond herein provided for,” cannot and should not be construed to mean that a judgment for debt not incident to nor growing out of the loan brokerage business may be collected out of the bond. If such construction should be placed thereon, then we think this provision would be invalid, but the invalidity of such provision would not invalidate the entire act. The proper construction of this section is made plain by the conditions of the bond required to be given, which provides simply that the bond shall be conditioned for the faithful compliance with each and every requirement of the law governing the business defined in the act. The only legitimate construction to be placed on the language of section 9 is that the judgments obtained under this law, or any other law governing loan brokers, as defined in this act, which have heretofore or may hereafter be passed by the Legislature, shall be collectible out of the bond given. And, as said, if section 9 should be held invalid, because of doubt as to the meaning of the words employed, the object and purpose of the law is made plain by the other provisions of the act, and can be accomplished thereunder, and the bond would be liable under section 2 for all judgments obtained because of a violation of the provisions of the law, and the act should be held valid.

We have not discussed the law by sections, but in the opinion have passed on every question raised by relator, and we are of the opinion the law is in violation of no provision of the Constitution.

The relator is remanded.

BA VID SON, J.

(dissenting). I deem it not necessary to write. I am persuaded the case on the law should have been reversed. I further believe some of the provisions clearly invalid and unconstitutional.

On Motion for Rehearing.

HARPER, J.

Relator has filed a motion for rehearing in this cause, and a very able argument in support of it. It has been pending for some time, and we havp during that time given the propositions- most careful thought and study, and we are frank to say that the one first presented was not to us entirely free from difficulty, but, after reading the decisions of the various states of the Union, and the decisions of the Supreme Court of the United States, we have come to the conclusion that, when a citizen, like a corporation, comes to the government and asks a privilege or license to engage in any given character of business that is subject to police power of the state, the state has a right to annex to the privilege or license in granting it any reasonable regulation it deems necessary to attain the purpose and object of the law. One of the purposes and objects of this law is to prevent those who are engaged in the business or occupation of lending money on household goods or upon assignment of wages of wage-earners to charge a greater rate of interest on such loan than that authorized by law, and, if they do, to provide a ready means whereby the penalty prescribed by law may be readily enforced.

Relator speaks feelingly of the man who has nothing but his wages or household goods to give as security for a loan, and that it is not right to deprive him of the privilege of mortgaging such property, if necessity requires or he desires to do so. With the wisdom of the law this court has not and cannot sit in judgment. This power is not confided to us, but the sole question we have to pass on is: Is the law violative of any provision of the federal or state Constitution? Texas was the pioneer state in exempting the homestead from execution and forced sale, and at the same time provided in the Constitution that no mortgage lien could be created thereon, even with the consent of the wife. If such provisions of law were violative of the federal Constitution, then this clause of our state Constitution would be void; but not so, it has been sustained in all the courts of the land where the question was raised. And, if the people had the authority and power to place that provision in the Constitution, then they, acting through their chosen representatives, have the same power to so enact in regard to other species of property whenever they deem the public welfare demands it, if there is no inhibition in the state Constitution. It is the people of the state so enacting, and, if the law is unwise and it works unnecessary hardships on the poor and friendless, we have that faith in the ultimate judgment of the citizenship of the state that it will not long remain the law. But, be that as it may, it is not a question of whether or not the law is wise or unwise; all we can do is to see whether or not it intrenches upon any right reserved to the citizenship as a whole or any individual citizen, and we shall discuss the law from that standpoint, and that alone, and will not diverge into other fields.

The first contention of relator is that we erred in holding that the state had the authority and power to provide, as condition prerequisite to issuing one a license to engage in this business, that the licensee shall file a power of attorney, appointing the county judge of the county in which such license is sought to be obtained his agent upon whom service of citation may be had for any suit growing out of the loan brokerage business as defined by this law. And we will say that relator desires us to correct the impression, if such was made by the original opinion, that he contended that the law was void by reason of it selecting the county judge as such agent to be appointed. Relator concedes that, if the Legislature had the authority to require the selection of an agent upon whom process might be had, the law could select the county judge. His contention is that no authority existed to require the naming of an agent for the purpose named, and he ably presents this question. One of the most and oftenest quoted opinions on this subject is that of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 566, and in that opinion the Supreme Court of the United States says:

“Neither do we mean to assert that a state may not require a nonresident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the state to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgment rendered upon such service may not be binding upon the nonresidents both within and without the state. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290: ‘It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a I judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.’ See, also, Ins. Co. v. French, supra [18 How. 404, 15 L. Ed. 451], and Gillespie v. Insurance Co., 12 Gray [78 Mass.] 201 [71 Am. Dec. 743], Nor do we doubt that a state, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin v. Adamson, L. R. 9 Ex. 345.”

And in Wilson v. Seligman, 144 U. S. 42, 12 Sup. Ct. 541, 36 L. Ed. 339, the Supreme Court of the United States holds:

“It may be admitted that any state may by its laws require, as a condition precedent to the right of a corporation to be organized or to transact business within its territory, that it shall appoint an agent there on whom process may be served, or even that every stockholder in the corporation shall appoint an agent upon whom, or designate a domicile at which, service may be made within the state, and that, upon his failure to make such appointment or designation^ the service may be made upon a certain public officer, and that judgment rendered against the corporation after such service shall bind the stockholders, whether within or without the state. In such cases the service is held binding because the corporation, or the stockholders, or both, as the case may be, must be taken to have consented that such service within the state shall be sufficient and binding; and no individual is bound by the proceedings who is not a stockholder. Lafayette Ins. Co. v. French, 59 U. S. (18 How.) 404, 15 L. Ed. 451; Ex parte Schollenberger, 96 U. S. 369, 24 L. Ed. 853; Pennoyer v. Neff, 95 U. S. 714, 735, 24 L. Ed. 565, 573; Vallee v. Dumergue, 4 Exch. 290, 303; Copin v. Adamson, L. R. 9 Exch. 345, 355, 356, and L. R. 1 Exch. Div. 17.”

It is thus seen that the United States Supreme Court holds that such provisions of law may be applicable to an individual as well as to corporations who seek a privilege or license from a state. If the loan brokerage, as defined, 'was not of a character of business the state had the right to regulate and control, a different question would be presented, but, inasmuch as it is such a business, the state has the right to prescribe that no one engaged in it shall charge a greater rate of interest than that authorized by the laws of the state, and prescribe means to prevent one from charging such excess rate, and, if they do, to provide means whereby the penalties prescribed by law may be enforced, then the state has the right to prescribe as a prerequisite to issuing one license to engage in such business that he shall name an agent upon whom service can be had when the penalties fixed by the law of the state are sought to be enforced, if the laws pertaining to such business are violated by the person to whom license is issued.

Relator contends that, even if the state had the right to require that an agent be designated upon whom service could be had in case he violated the law, the state had no right to require that he give a $5,000 bond, “conditioned that he will faithfully comply with each and every requirement of the law governing the loan brokerage business, as defined, and will pay to any person dealing with such loan broker any judgment that may be obtained against him”; that bond in such sum is prohibitive, and without proof we ought to take judicial notice that no person can give bond in, such sum. The writer feels that the courts have no judicial knowledge on this question, and, if we had personal knowledge, we would not be authorized to take into consideration in passing -on this question. We do not know the volume of business done by those engaged in the loan brokerage business, nor the profits arising from such business. We do not know whether this bond is excessive or not. We do know it is in no greater amount than the bond required of retail dealers in spirituous liquors, and that bond is conditioned, as is this one, that the licensee will obey the law governing such business, and will pay penalties to any person suffering by reason of the licensee not observing the law governing his business. And such law has been upheld by our courts in numerous instances. We do know that retail dealers readily give such bonds, and it seems to us that, if they can do so, with the environments thrown about them, then certainly a loan broker under this statute can do so, if he has so lived as to have the reputation of being a law-abiding citizen, and, if not, this law or any other law does not contemplate the licensing of any person to engage in any character of business who is a criminal, or continuous violator of the laws of this state. Such laws are in force in many states, not only with reference to liquor dealers, but also in reference to persons engaged in the business of pawnbroker, and they have uniformly been upheld in the various states of the Union. We all know that bonds of this character are to a large extent now made by indemnity or surety companies, and in this record there is no evidence of what their fees would be for becoming surety on such bond, and no evidence that the average profits on business of this character would not justify the paying of such fees. Then it authorizes the giving of a personal bond.

The contention of relator “that the bond given shall by its terms and recitals provide that it shall continue and remain in force and effect so long as such loan broker continues to do business in this state, that it is like a mighty river, going on forever,” is not sustained by the statute in question. It provides that a new bond shall be given annually, so that the bond given in any one year will be held to be responsible only for violations of the law and penalties incurred during the year in which it was given to cover alone, and by provisions of law it expires at the end of the year, and is liable for no transactions occurring after that time. We have provisions fixing the time in which suits may be brought upon this bond, as we have in case of the liquor dealer and pawnbroker bonds, and its provisions are no more onerous than are the bonds in those instances.

It is contended the law is void because it levies no penalty for its violation. If that was the correct construction of the law, we are satisfied relator would not take the time nor trouble to contest its validity. Our laws provide, if one lending money shall charge and collect a greater rate of interest than that fixed by law, he may be required to pay back double the interest so collected. This is the penalty prescribed by law, and for which the bond given will be liable, and it is because of this penalty and liability relator contends the bond will be so difficult to give. We must always view laws dealing with a given subject in their entirety, and not take one separate provision and construe it alone. Lewis’ Sutherland, Statutory Construction, §§ 443 to 449. But, in addition to this, in section 10 a specific penalty is assessed against all persons who engage in the occupation licensed without first taking out a license under the law.

It is also contended that the law is discriminatory, in that it does not bear equally on all who may engage in this character of occupation. We think relator is wrong in seeking to place such construction on the law. He admits that the act in question, in and of itself, does not do so, but his contention is that other provisions of law necessarily so result; If the law does not bear equally on all who engage in the given occupation, we would readily concede that it is invalid, but the illustrations cited by relator do not bear out his contention. It should be remembered that it is a given occupation that is taxed, pursuing a certain line of business, and we think all who pursue that occupation will be liable for the tax. It is true that a lawyer, as cited by relator, might occasionally take such a lien to secure his fee, and it would not render him liable for the tax, nor that some person who might sell another furniture would retain a lien to secure the payment of the purchase price would not be rendered liable for the tax. But neither of them would be engaged in the business and occupation of “lending money upon interest.” It is the occupation that one pursues that is licensed and taxed,' and this term has a well-defined meaning under our law and the decisions of this court. Tarde v. Benseman, 31 Tex. 282; Standford v. State, 16 Tex. App. 332; Williams v. State, 23 Tex. App. 500, 5 S. W. 136.

Relator next contends that the provisions of the law are violative of “the laws of both God and man,” in that it provides “all compromises for usury or unlawful interest collected and received are contrary to public policy, and shall be void.” Why the prohibition of a compromise of the penalty-prescribed by law for doing this unlawful act is any more violative of law than the prohibition of compromises of other unlawful acts we are unable to discern. Article 422 of the Code, and Shriver v. McCann (Civ. App.) 155 S. W. 317. The law has fixed the penalty for charging unlawful interest, and certainly it can say that no citizen shall have authority to nullify this law as a matter of public policy.

We want to also say in behalf of relator that he did not contend that the provisions of this law could be construed into imprisonment for debt, and, if the original opinion gave such an impression, we readily mate the correction at his request. His contention is that it is an effort to make the loan broker pay his debts, which provision of law is applied to no other citizen, and, if it were, it would likely bankrupt many who are now engaged in legitimate business. If a man violates many of the laws of the state in which a pecuniary penalty is assessed, he is taken bodily and imprisoned in jail, and held until the penalty is paid, or he has served out the time either in jail or upon public works at so much per day. This was not to make him pay the debt, but to respect and observe the law. So in this instance the law simply prescribes that, if a man engages in the loan brokerage business as defined, does not pay the penalties prescribed by law for charging unlawful interest, if he does do so, such person shall no longer be authorized under the law to engage in such business. It suspends Ms license to engage in business until he has paid the penalty the law prescribes if he charges unlawful interest, and such fact established in a court of law. Nothing more, and even absolute forfeitures under such circumstances have been sustained.

While perhaps we have not discussed every question presented in the motion and argument for a rehearing, yet we have done so either in this order or in the original opinion, and, in our opinion, on the face of the law, without any facts surrounding the business before us, we do not think it vio-lative of any provision of the Constitution, with the statement that under the provisions of the law the loan broker under his bond would be liable on his bond for no amount other than the penalties fixed for the charging and collecting of unlawful interest, and suit could not be maintained by service upon the county judge for any other transaction than that growing out of charging and collecting unlawful interest in making loans and taking security for the payment of such loans and interest on assignment of wages and powers of attorney to collect same or other order for unpaid chattel mortgage or bill of sale upon household and kitchen furniture.

The motion for rehearing is overruled.

DAVIDSON, J., dissents.
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BEAKES v. STATE.
    (No. 3929.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    Indictment and Information <@=>5 — County Cotjbt — Necessity of Information.
    A conviction in the county court upon a complaint only, where the defendant did not waive the filing of an information but objected to trial on the complaint, could not be sustained.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 28; Dec. Dig. <S=s5.]
    Appeal from Wharton County Court; W. G. Davis, Judge.
    Abe Beakes was convicted of adultery, and he appeals.
    Reversed, and cause remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of adultery, and assessed the lowest punishment therefor.'

The trial was had in the county court upon a complaint only. No information was filed. Appellant in the court below objected to this, and preserved a bill of exceptions to the fact that he was tried without any information filed against him, and only on the complaint. No question of waiver of an information is raised. In fact, the reverse of this is true. He did not waive it, but expressly sought to prevent a trial without it. Under such circumstances his conviction cannot be sustained. Ethridge v. State, 172 S. W. 786, and, also, Id., 172 S. W. 784.

The judgment is reversed, and the cause remanded.

DAVIDSON, J„ absent.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes