author: DAVIDSON, P. J.

text:
    THOMPSON v. STATE.
    (No. 4798.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1918.).
    Rape @=>'53(5) — Assault with Intent — Sufficiency of Evidence.
    Evidence held insufficient to sustain a charge of assault with intent to rape a girl under 15 years of age.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Richard Thompson was convicted of assault to rape, and appeals.
    Reversed and remanded.
    Wm. D. Simpson, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape, his punishment being assessed at five years and six months’ confinement in the penitentiary.

The testimony of the prosecutrix, bearing directly upon the case, is thus quoted:

“My father’s mail box is about one-fourth of a mile from the house. I went to the mail box by myself. 1 saw Richard Thompson. He mot me out there at the gate. The gate is close to the mail box. He met me as I was coming back from the mail box. When he first came up, he just spoke to me. He did not say anything else just at that time. 1-Ie walked on with me a while. We were walking back towards my papa’s house. On the way to my papa’s houso he wanted to put his in mine. He said he wanted to put his in mine. He took hold of me. This mail box transaction was some time in. 1915. When he said he wanted to place his hands on me, he took hold of my left hand. When he took hold of my left hand, he said it would not hurt. 1-Ie caught my right hand. 1-Ie had hold of both of my hands. He did not place his arm around my waist. He tried to hold me. He did not place his hands on my legs at that time. I jerked loose from him and cried. I did not holler. I jerked loose from him and went home. When I jerked loose from him, he told me not to tell it. Ho told me not to tell my mama and papa. He said, if I told them, they would put me in jail. That occurred in a lane, out in the Flatswood community. I was going' home from tBe mail box. That was all that occurred, that I remember. * * * I have told the jury all that occurred at that time. I did not go on to the house by myself. He went on with me. After I jerked loose from him, and he and I walked on to my father’s house, he did not say anything else. * * * I have told everything that Richard Thompson did to me. That is all I can think of now. That was early in the morning, after the mail man passed.”

On cross-examination she testified:

“I have related all that Dick did to me, and all that I have related he did. Dick told my father and'— As to the first time I told my father and mother about this — ■ Dick told it the first time. Dick told it first. 1-Ie didn’t tell them; he told somebody else. My father and mother asked me about it. I did not remember just when father asked me about it the first time. I think I was out with him one time after he had that talk.”

Another witness testified that he was a cousin of the alleged prosecutrix, Nova Yan-cey, and that appellant told him that he tried to have intercourse with prosecutrix, and she refused, and he said she was a nice, virtuous girl. A brother of this witness testified that he was present when the conversation occurred between defendant and the witness. 1-Ie testified that defendant said he asked prosecutrix to have intercourse with him, and she refused, and that she was a nice, virtuous girl. He did not recollect as much of the conversation as the former witness. This is the state’s case.

It is contended this evidence does not support the charge of assault with intent to rape on a girl under 15 years of age. We are of opinion the contention should be sustained. The matter was very thoroughly discussed, and the whole question reviewed, by Judge Cobb in Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129. The Cromeans Case has been followed, and approvingly, in Hightower v. State, 65 Tex. Cr. R. 330, 143 S. W. 1168, and Blair v. State, 60 Tex. Cr. R. 364, 132 S. W. 358. The facts in the Cro-means Case are so much like the facts of this case we deem it unnecessary to review this question and the authorities. In fact, the Cromeans Case presented a somewhat stronger case for the state than do the facts in this case.

The judgment will be reversed, and the cause remanded.
      Corv^Ebr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    JENNINGS v. STATE.
    (No. 4761.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Witnesses <@=>350 — Impeachment — Accusation of Particular Offense.
    The offense of pursuing the business of selling intoxicating liquor in prohibited territory being a felony, proof on cross-examination of the defendant that he had been indicted therefor was legitimate for impeachment purposes.
    2. Witnesses <@=>345(2) — Impeachment oe Defendant — Former Accusation of Crime.
    Proof that defendant had been charged in the federal court with the sale of intoxicating liquors without a license, such crime being a misdemeanor not imputing moral turpitude, was not admissible for the purpose of impeachment.
    Appeal from Smith County Court; W. R. Castle, Judge.
    Jumbo Jennings was convicted of selling liquor in prohibition territory, and he appeal*^
    ^Reversed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the unlawful sale of intoxicating liquor in territory where the sale was prohibited by law. The offense was a misdemeanor, and the punishment fixed at a fine of $25 and 20 days’ confinement in the county jail. The sale was proved by the state, denied by appellant, and the defense of alibi interposed. Tliese -issues were submitted to tbe jury iu a charge which was not complained of.

The offense of pursuing the business of selling intoxicating liquor in prohibited territory being a felony, proof on cross-examination of appellant that he 'had been indicted therefor was legitimate for impeachment purposes, and his. bill of exception complaining thereof is without merit. Branch’s An. P. C. p. 101, § 167, and cases cited.

Proof that appellant had been charged in the federal court with the sale of intoxicating liquors without a license was not admissible for the purpose of impeaching him. It was a misdemeanor not imputing moral turpitude, and proof of this class of offenses has been frequently held inadmissible for the purpose of impeachment. Branch’s An. P. C. pp. 102, 103, § 169; Shepherd v. State, 76 Tex. Cr. R. 307, 174 S. W. 609; Hightower v. State, 73 Tex. Cr. R. 258, 165 S. W. 186; Johnson v. State, 67 Tex. Cr. R. 441, 149 S. W. 165; Clay v. State, 65 Tex. Cr. R. 402, 144 S. W. 280; Kirksey v. State, 61 Tex. Cr. R. 298, 135 S. W. 124; Hightower v. State, 60 Tex. Cr. R. 109, 131 S. W. 324; Jennings v. State, 55 Tex. Cr. R. 147, 115 S. W. 587; Marks v. State, 78 S. W. 512; Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407; Stewart v. State, 38 S. W. 1144; Tyrrell v. State, 38 S. W. 1011; Merriwether v. State, 55 Tex. Cr. R. 439, 116 S. W. 1150, in which case Judge Ramsey, passing on the question, states the rule as follows:

“We understand the rule to be that charges preferred in a legal manner, and certainly convictions of crime which imply moral turpitude, are receivable in evidence as affecting the credibility of a witness or a defendant; but this rule has not been applied, we think, and should not be applied, in respect to convictions which do not involve moral obliquity, or of the grade of felony, or such as are not of the class that the law recognizes as involving moral turpitude.”

The admission of the illegal testimony mentioned- requires a reversal of the lower court, which is ordered.


text:
    ALANIS v. STATE.
    (No. 4489.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Rehearing Denied Jan. 30, 1918.)
    Homicide <@=>250 — Murder—Sufficiency of Evidence,.
    Evidence held to show, at most, only manslaughter, and not to sustain a conviction for murder.
    Prendergast, J., dissenting.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Hilario Alanis was convicted of murder, and appeals.
    Reversed and remanded.
    Pope & Sutherland, of Corpus Christ!, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and allotted 15 years’ confinement in the penitentiary. The case originated in Duval county, and was transferred to Nueces county on change of venue.

It is contended the court erred in submitting the issue of murder, and the same question is also raised on the sufficiency of the evidence to show the offense of murder; the claim being that the offense from the state’s standpoint was of no higher dignity than manslaughter. The proposition is practically the same, whether viewed from the standpoint of the objection to the charge or tho sufficiency of the evidence.

The state’s case practically is that deceased, Eintou Shaw, and his brother James Shaw went to a house where there was a Mexican dance. They walked around the house and located themselves neaff a window to hear the music and avoid the crowd. A Mexican, who was not the defendant, said to James Shaw, brother of deceased:

“ ‘What the hell is it to you if you don’t like-it?’ After my brother told him that I was crippled, and that, if he had anything, that he could take it up with him, then they had a fight there; they just started striking each other; my brother hit him, and he hit my brother. They hit each other with their fists. A Mexican separated them, and this Mexican, defendant, came running from somewhere, and said if those gringoes didn’t behave themselves he was going to fix them.”

This witness testifies he and his brother, deceased, then walked over to Mrs. Hughes’ residence across the street and remained there about 25 minutes, then went back to where the dance was in progress. Upon returning the witness, who seemed to be in front of deceased, said he looked around and did not see his brother, and went back around the corner of the house, and he was standing talking to Juan Alanis, Hilario Alanis, Manuel Ortiz, and Esequio Rios, a deputy sheriff. Juan Alanis is the father of the defendant, and when witness reached where they were talking the first thing he heard as he walked up was that Juan Alanis, father of defendant, said to deceased that he heard he was looking for his son to kill him, and witness’ brother said, “No; that is not true;” and he said, “Well, I have witnesses;” and witness’ brother said, “Well, if you have witnesses, bring them here and I will tell them that they lie.” Witness then said:

“When X looked around the defendant here and his father rushed on my brother, striking him with their fists, and he was backing off. He backed to where I was standing, and when he came up Juan Alanis, the father of defendant, came towards me in the attitude to strike me, and there was some one behind , me. I didn’t have time to look around to see who it was, and as soon as he got close enough I hit Juan Alanis, the defendant’s father, with my crutch. He ducked, and I hit him on the head, and just as I hit him a Mexican grabbed me from behind with my two arms, and my crutch was broken. I saw there was an officer between them, but just as they got up the moon was shining as bright as it could, and my brother holloed: ‘Pick up that gun; don’t let him get it/ At that time the defendant was striking my brother, and my brother was going. back and hitting him with his fists. So Esequio Rios, a deputy sheriff, picked up the pistol.”

While deceased was engaged in the fisti-cuff with the defendant and just after witness struck defendant’s father with the crutch, deceased called out that he had dropped his gun, to pick it up, and not let them get it. The defendant and deceased were exchanging blows with their fists. When this remark was made the deputy sheriff picked up the gun; “the defendant and deceased were right together, as close as they could get, hitting each other with their fists; they were a foot or a foot and a half apart.” “While the difficulty was going on I heard my'brother say, ‘Pick up that gun.’ 1 didn’t know that my brother had a gun; ho said, ‘Pick up that gun.’ He must have had the gun all that evening.” It is shown that the dance was at the residence of a half-sister of appellant.. James Shaw and his brother Hinton, deceased, were not invited to the dance. He further testified that his brother was willing to defend him, and offered to take care of any derogatory remarks that were made relative to the witness, and made a statement that he was willing to take care of anything that came up relative to witness. After this occurred they went over to the residence of Mrs. Hughes. Shortly afterward, within 20 or 25 minutes, they returned to the place of the dance. The deputy sheriff Rios testified that deceased called out in English that he had dropped his gun, and to pick it up. 1-Ie picked up the gun while these boys were fist-fighting each other. The deceased told him to pick up his pistol. Neither was advancing; they were engaged in a fist fight. “It is true that this defendant never fired a shot until after Shaw made this remark about his pistol. It is a fact that the father of this defendant was lying unconscious on the ground before this defendant fired that shot. This trouble occurred at the house of the sister of this defendant.” Another state’s witness, Ortiz, testified that the father of defendant came and complained to him as an officer that Linton Shaw, deceased, intended to kill his son. During that conversation deceased told Juan and Hilario that they were not men enough to stan(j for what Hilario said. This witness Said he stated on the examining trial' that Hilario came in in defense of his father; and witness further testified that defendant’s father stood back, and that deceased and defendant were striking each other with their fists and that at that time James Shaw struck Juan, father of defendant, on the head with a crutch. The defendant saw James Shaw strike Juan Alanis, father of defendant, over the head. It seems the defendant and deceased then began fighting when appellant saw his father hit over the head with this crutch. This witness testified that during the fight, the parties were fighting each other with their fists.

The defendant’s testimony is to the effect that deceased and defendant came around the corner of the house first; they were striking at one another with their fists, the crowd being back of them. The defendant did not fall when deceased struck him; he just fell with his hand on the ground and straightened up, and just as he straightened up he and Shaw both pulled their guns, and Shaw’s pistol fell, and just as it fell to the ground defendant fired. The defendant testified when he got to where the trouble .between his father and James Shaw was going on he saw his father on the ground and the deceased standing near him. Deceased then came over to defendant and started fist-fighting him. He hit defendant and came pretty near knocking him down; when defendant straightened up deceased put his hand on his pistol, and defendant put his hand on his, and shot. This is the language with reference to that part of the difficulty:

“I shot him because my father was lying on the ground, and I didn’t know whether he was dead or alive, and he was fighting with me and had reached for his pistol, and when he did I shot him.”

This is a sufficient statement of the ease without going more into detail, and is, we think, a sufficient illustration of the difficulty.

It was under this state of case defendant objected to the charge of the court submitting the issue of murder and the want of sufficient evidence to justify a verdict; his contention being that in no event could the offense 'be higher than manslaughter. Whether viewed from the standpoint of the charge or the testimony, the same result would be reached, that is, the evidence was or was not sufficient to justify a verdict for murder. We are of opinion that under this testimony appellant ought not to have been convicted of any higher grade of offense than manslaughter. The evidence shows, in a general way, that deceased and his brother were at the Mexican dance, engaged in a difficulty, went away and came back. The deceased was armed, and the testimony indicates that they brought about the difficulty again, or whether they did or not, they came and there was a fist fight between defendant and deceased immediately following the use of the crutch by James Shaw upon appellant’s father. This was a Mexican dance, and deceased and his brother were not guests or invited to be there. This was a quarrel or trouble between the parties, followed by a fist fight, and later developed into the trouble where deceased drew his pistol and appellant drew his, and a tragedy occurred. Under the circumstances wé are of opinion that this offense is no higher from the strongest view of it for the state than manslaughter.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J., dissents.
      <@=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    HENDRICK v. BLOUNT-DECKER LUMBER CO. et al.
    (No. 1862.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 29, 1917.)
    1. Appeal and Error <@=719(3, 4, 8) — Review — Assignments op Error — Fundamental Errors.
    Under Rev. Civ. St. art. 1607, requiring Courts of Civil Appeals to determine controversies on errors in law, assigned or apparent on the face of the record, the court is required, even in the absence of any assignment, to examine the pleadings and the judgment to ascertain the jurisdiction of the court, and its authority to render. the particular judgment brought up, and a judgment based upon insufficient pleadings, or rendered in a case where the court had no jurisdiction over the parties or the subject-matter, or not conforming to the pleadings, is fundamentally erroneous, and should .be revised regardless of legal difficulties involved in discovering the error.
    2. Appeal and- Error <S=719(1) — Review-Assignments oe Error — Fundamental Errors.
    Under Rev. Civ.. St. art. 1607, where an error is one which must be discovered by an examination of evidence, then, in order to be considered in the absence of an assignment, it must not only be one which affects the rights of the parties to a particular kind of judgment, but one which is open and easily discovered by an inspection of that portion of the record in which the evidence is presented.
    3. Appeal and Error <@=212, 719(6) — Objections — Assignments off Error — Necessity.
    Under Rev. Civ. St. art. 1607, requiring Courts of Civil Appeals to review errors, assigned or apparent on the face of the record, and article 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), providing that litigants shall be given an opportunity to examine and object to the charge before it is read, and that objections not so made shall be considered as waived, the giving of a peremptory instruction is not per so such an error as may be considered in the absence of appropriate objections and proper assignments, and if the evidence makes the giving of the charge of doubtful propriety, and a critical examination of the evidence is necessary to revise the error, it cannot he reviewed.
    4. Appeal and Error <§=215(1) — Necessity of Objections — Instructions.
    Under Rev. Civ. St. art. 1971, as amended in 1913, even an error apparent on the face of the record when resulting from an improper charge is waived, and the right of revision on appeal is lost when no objections are presented in the court below.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by H. R. Hendrick against the Blount-Decker Lumber Company and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    W. J. Townsend, of Austin, and Guinn & Gninn, of Rusk, for appellant. Norman, .Shook & Gibson, of Rusk, for appellees.
   HODGES, J.

This appeal is from a verdict rendered for the defendants in response to a peremptory instruction. There is an absence from the record of any written objection to the charge of the court made before it was read fo the jury as required by statute; and unless the error here assigned is fundamental, or one apparent from the face of the record, it cannot be considered. There is among the Courts of Civil Appeals an irreconcilable conflict upon this particular question. See the cases collected in 18 Encyclopedic Digest, p. 553. Some of them hold that the giving of a perenrptory instruction is an error which the Court of Civil Appeals will consider in the absence of any objection made in the trial court, while others hold to the contrary. This-court in some earlier cases was disposed to consider such an error fundamental, but has now become fully committed to the opposite doctrine. The importance of the question, however, is such as to call for some discus.sion of the principles upon which we base our ruling. Article 1607 of the Revised Civil Statutes provides, among other things, that:

“In cases of appeal or wilt of error the Courts of Civil Appeals shall determine the controversy upon a statement of facts, or agreed statement of the pleadings and proof, or the conclusions of law and fact certified by the judge below, * * * or on an error in law, either assigned or apparent on the face of the record.”

This has been the law for many years. But there has never been a definition of what is an error “apparent upon the face of the record” so clear as to prevent conflicting decisions. In Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85, the Supreme Court had under consideration the following, which was presented for the first time in the Court of Civil Appeals:

“The trial court erred in its charge to the jury in instructing them to find for the plaintiffs for the land described in their petition, unless they should find for the defendant upon the defense of three years’ limitation.”

The contention was there made by the plaintiff in error that the giving of that charge was an error “apparent upon the face of the record,” and that the complaint should be considered when presented for the first time on appeal. Justice Brown, who wrote the opinion in that case, after quoting article 1014 of the Revised Statutes of 1895, said:

“Webster defines the word ‘apparent’ thus: ‘Clear, or manifest to the understanding ; plain; evident; obvious; appearing to the eye or mind. This does not mean that an error whicli can be ascertained by looking into the record and considering the evidence may be considered without an assignment; for that would include every error which can be considered at. all. Nothing can be considered as an error_ which cannot be made apparent by an examination of the record; therefore the language of the statute must bo given that construction which would make it consistent with its requirements in other respects. The language, ‘apparent from the face of the record,’ indicates that it is to be seen upon looking at the face of the record, that is, the assignment itself. The fact pointed out by it must show a good and sufficient ground for the court f to interfere to prevent injustice being done 'to one - of the parties. Perhaps the best expression is that it must be a fundamental error, such error as being readily seen lies at the base and foundation of a proceeding and affects the judgment necessarily.”

In that case, however, it was held that iilnsmuch as the error referred to could not be ascertained without an examination and weighing of the evidence, it ivas not within the class referred to in the statute.

In Oar v. Davis et al., 105 Tex. 479, 151 S. W. 794, the same tribunal was considering' a case on appeal which involved the issue of fraud in the procurement of a deed and a homestead right. There was presented in the Supreme Court for the first time the following:

“The Court of Civil Appeals erred in not reversing or reforming the judgment of the district court, ordering partition of the land in controversy between the plaintiffs and intervener, because the judgment divested the defendant * * * of her one-third life estate in said land.”

It was there contended by the plaintiff in error that the error was one which the Supreme Court should consider in the absence of an assignment in the preceding courts. The Supreme Court granted a writ of error under the impression that the contention was sound; hut upon further consideration receded from that position. In discussing the question Justice Dibrell said:

“The adjudications of this court have given the expression ‘an error of law, apparent upon the face of the record,’ the meaning of such error as is fundamental in character, 'or one determining a question upon which the very right of the case depends, or such an error as being readily seen lies at the base and foundation of the proceeding and necessarily affects the judgment. Wilson v. Johnson, 94 Tex. 276 [60 S. W. 242]; Houston Oil Co. of Texas v. Kimball, 103 Tex. 103 [122 S. W. 533, 124 S. W. 85].”

He then quotes with approval the following from Wilson v. Johnson: ,

“Since every error must in one sense appear upon the face of the transcript, it is difficult to tell what is meant by this language. But we incline to think it intended to signify a prominent error, either fundamental in character or one determining a question upon which the very right of the case depends.”

From the foregoing decisions we infer that the record, which must be consulted, in discovering an “apparent error,” includes not only the transcript as prepared under the rules now in vogue, but the statement of facts when there is one. It must be remembered that at the time the decision in Wilson v. Johnson, supra, was rendered the statement of facts was a part of the transcript.

Appellate courts are required, even in the absence of any assignments, to examine the pleadings of the parties and the judgment rendered, in order to ascertain the jurisdiction of the court and its authority to render the particular judgment brought up in the record. A judgment based upon insufficient pleadings, or one rendered in a case where the court has no jurisdiction over, the parties or the subject-matter of the suit, or one which does not conform to the pleading is fundamentally erroneous, and on appeal should be revised regardless of the legal difficulties involved in discovering the error. Such an error is one which lies at the foundation of the suit and involves the power and authority of the court to render the particular decision. But where the error is one which must be discovered by an examination of the evidence, then, in order to be considered in the absence of an assignment, it must not only be one which affects the rights of the parties to a particular kind of judgment, but one which is open and easily discovered by an inspection of that portion of the record in which the evidence is presented.

If the above be the true rule in regard to the issues of fact, then the line between what 4s and what is not apparent upon the face of tlie record is as difficult to locate as that which lies between the sufficiency and the insufficiency of the evidence to support a verdict.

Whether or not a peremptory instruction is an “error apparent upon the face of the record" would in every case depend upon the ease or the difficulty with which it may he ascertained. If the question is doubtful, or the discovery of the error involves an extended examination of the statement of facts, it would not fall within the above definition of an “error upon the face of the record.” We therefore conclude that the fact that a peremptory instruction is given does not per se malee the error one which should he considered in the absence of appropriate objections and proper assignments. If the evidence is of that character which makes the giving of such charge of doubtful propriety, and a proper decision of the question requires an extended examination of a complex statement of facts, it cannot be said that the error is one which falls within any of the definitions announced by our Supreme Court.

Since the decisions in the cases above referred to our practice acts have been altered in some material respects. Under article 1971 as amended by the Acts of 1913, 'litigants are given an, opportunity to fully examine the charge of the trial court before it is read to the jury, and are allowed time in which to present objections thereto. It is provided that all objections not so made shall be considered as waived; the purpose of the statute being to give the trial court an opportunity to make timely and proper corrections in his charge. A failure to accord him that opportunity as required by the statute is legally a waiver of all errors in the charge which the parties could waive. If that rule does not apply to peremptory charges, it is because that class of instructions does not come within the meaning of the statute. But we have been unable to discover any satisfactory reason why they should be excluded. The practical effect of such a charge is an assumption on the part of the court of the authority to determine all the issues of la,w and fact, and involves the conclusion that there is no evidence upon-which to found a contrary verdict. It may be given as the only general charge, or as a special charge at the instance of one of the parties to the suit. In either case it constitutes the court’s directions to the jury concerning their verdict. If its only effect is to bring about the rendition of an erroneous judgment the injured party may acquiesce and waive any right to have the error reviewed on appeal. The courts have no right to say that the Legislature meant less than it said, especially in the construction of a statute which has for its object the termination of litigation. When the law has placed within easy reach of the litigant a method to be adopted in prosecuting appeals from trial courts, there is little reason for straining the law in order to help those who fail to conform to its requirements. The right of appeal is not so inherent that to protect it we must disregard the plain language of the law. An error committed in misdirecting a jury is not essentially more hurtful than one resulting from refusing a continuance or from admitting or excluding testimony. Yet these rights may be lost by a failure to present them in the manner prescribed by the statute.

The act of 1913, being a later enactment of the Legislature, must control wherever there may arise a conflict between its provisions and those of article 1607. To give full effect to the terms of the later law even an error apparent upon the face of the record, when resulting from an improper charge, is waived, and the right of revision on appeal lost, when no objections are presented in the court below.

Again, it should be borne in mind that article 1607 deals with errors which may be considered in the absence of assignments filed in the trial court, and not those waived by a failure to comply with the legal rules of procedure. The situation here presented results, not from the failure to file the assignments of error, but from the failure to make the objections essential to form the basis of an assignment. We do not understand the rule to be that even a prominent) error can in every instance be considered on appeal when there has been no attempt in the trial court to observe the statutory requirements for preserving the rights there denied.

In this case the court had the judicial power to give the peremptory instruction complained of. The judgment rendered- is supported by the pleadings and is within the jurisdiction of the court. To revise the error requires a critical examination of the evidence. We are therefore of the opinion that in this case the giving of a peremptory instruction was not an error that we are called upon to consider in the absence of appropriate objections made in the trial court.

The judgment of the district court will therefore be affirmed.

It is proper to state that the majority of the court concur in the conclusion reached in this case, but they disagree with the expressions used in the opinion which hold that the record referred to in article 1607 of the Revised Civil -Statutes includes the statement of facts.
      <@=For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author:
WILDSON, C. J.
      HODGES, J.

text:
    BROWN v. GREENSPUN.
    (No. 1861.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 5, 1917.
    Rehearing Denied Jan. 3, 1918.)
    Appeal and Error <@=>209(1) — Review—Error Apparent on the Face op “Record”— Statute.
    Error that judgment by default was without the support of testimony was not one “apparent on the face of the record,” which it was the duty of the Court of Civil Appeals to correct without reference to whether the validity of the judgment was in' any way challenged below; the word “record,” as used in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, providing that in all cases of appeal or writ of error to the Courts of Civil Appeals the trial shall be on an error of law assigned or apparent on the face of the “record,” not including the testimony, but having the meaning attached to it at common law.
    [Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Record.]
    Hodges, J., dissenting.
    Error from Titus County Court; Sam Porter, Judge. .
    Action by M. Greenspun against Jim Brown. To review a judgment by default for plaintiff, defendant brought error. The judgment was affirmed orally without considering the assignments, and defendant moves for rehearing.
    Motion overruled.
    J. M. Burford, of Mt. Pleasant, for plaim-tiff in error. T. C. Hutchings, of Mt. Pleasant, for defendant in error.
   WILDSON, C. J.

The writ was prosecuted from a judgment by default in favor of defendant in error against plaintiff in error for $232.59, as the balance due the former on an account for rent, based on a contract whereby he leased a store house in Mt. Pleasant to the latter. The trial was to the court without a jury. It did not appear that plaintiff in error excepted to the judgment when it was rendered, or that he complained of it in a motion for a new trial. The ground upon which he asked this court to reverse the judgment was that it was without the support of testimony. This court, being of the opinion that he was not entitled to attack the judgment on that ground, because he had not challenged its correctness in the court below either by excepting to it or in a motion for a new trial, orally affirmed it on the 22d ult., without considering the assignments. It is urged in the motion that the asserted error was one “apparent on the face of the record,” which it was the duty of this court ta notice and correct, without reference to whether the validity of the judgment was" in any way challenged in the court below or not. The decision was in harmony with others by this court and with decision by other Courts of Civil Appeals, and was predicated upon the theory that, in determining whether an asserted error is one “apparent on the face of the record” or not, the word “record” should be given the meaning attached to it at common law, and did not include the testimony heard at the trial. If the word as used in the statute (article 1607, Vernon’s Statutes) should be held to include the testimony, it would be the duty of a Court of Civil Appeals in every case appealed to it, without reference to whether the sufficiency of the testimony was questioned by a motion for a new trial or otherwise in the trial court or not, and in the absence even of an assignment on the appeal questioning its sufficiency, to look to the statement of facts, if one was with the transcript, and reverse the judgment if it appeared that it was not supported by testimony. That it has never been thought that the Court of Civil Appeals were charged with such duty is shown by decisions too numerous to cite here, holding, as in Cooper v. Lee, 1 Tex. Civ. App. 10, 21 S. W. 998, that an assignment that the verdict of a jury was not supported by testimony was too general to require the court “to review the evidence in order to determine whether or not it was sufficient to support the verdict,” and, 'as in Tel. Co. v. Neel, 35 S. W. 29, that an assignment that “the court erred in rendering judgment for the -plaintiff because the evidence in this case is not sufficient to sustain a judgment for plaintiff” should be ignored because too general. In every one of the numerous cases referred to the Courts of Civil Appeals were wrong in refusing to review the evidence If it was a part of thei “record” within the meaning of the statute requiring them to notice and correct errors “apparent on the face of the record.” If they were not wrong, because, as we think is true, the ■evidence heard at the trial of a cause is not a part of the record thereof on appeal, within the meaning of the statute, then we were not wrong in disposing of this appeal as we did. In those eases, as in this one, if the evidence was a part of the “record,” and did not support the judgment, the error was one “apparent on the face of the record.” The difference between those cases and this one lies in the fact that in those the appellants by excepting to the judgment, or questioning the sufficiency of the evidence in a motion for a new trial, became entitled to assign the insufficiency of the testimony as error; while in this one the appellant, because he neither excepted to the judgment nor attacked it as without the support of testimony in a motion for a new trial, never became entitled to assign the insufficiency of the testimony as error. Certainly, if it was not error in those cases to refuse to review testimony challenged as insufficient in the trial court, because the assignments challenging it on the appeal were too general, it was not error to refuse to review it when, as in this case, its sufficiency had in no way been challenged in the court below.

The motion is overruled.

HODGES, J.

(dissenting). The statement of facts filed in this court in this case shows clearly that the evidence relied on to support the default judgment appealed from is wholly insufficient. I do not understand that this condition of the record is disputed. The rendition of a judgment for plaintiff under those circumstances I regard as an error “apparent upon the face of the record,” which this court is required to notice in the absence of any assignment. Rev. Civ. Stat. art. 1607. X am unable to agree with my Associates in holding that the “record” referred to in the articles cited does not include the statement of facts filed in this court on appeal. This article was enacted in 1892, and appears as section 24 of an act to organize the Courts of Civil Appeals and define their jurisdiction. At that time the transcript filed in the Courts of Civil Appeals embraced the statement of facts. The latter could not be considered on appeal unless so appearing. There is nothing in the act to indicate that the term “record” was to be given a technical signification which would exclude the statement of facts. The presumption is that the term was used in its commonly accepted sense to include all that was embraced within a properly authenticated transcript. It has long been the custom for lawyers and judges to use it in that sense. I can therefore see no occasion for holding that this current meaning should be displaced by an old common-law signification which has long since dropped out of practical use. In Hendrick v. Blount-Decker Lumber Co., 200 S. W. 171, recently decided by this court, the writer referred to several cases decided by our Supreme Court which he thinks support this construction. In the two most recent cases there cited the errors called to the attention of the appellate courts, and which it was contended should have been considered because “apparent upon the face of the record,” involved issues of fact the determination of which required an examination of the statement of facts. Had the Supreme Court been of the opinion that the statement of facts formed no part of the record to be looked to in passing upon those issues, the question presented might readily havq been disposed of upon that ground alone. But, instead of so holding, other phases of the question were discussed at some length in a manner which seems to assume that the term “record” is broad enough to include the statement of facts.

It is contended that the frequent refusal of appellate courts to consider assignments of error complaining in general terms of the insufficiency of the evidence to support the judgment appealed from is inconsistent with the conclusion that the insufficiency of the evidence can under any circumstances be treated as an error “apparent upon the face of the record.” When we take into consideration the definition of the word “apparent” adopted by the Supreme Court in Houston Oil Co. v. Kimball, 103 Tex. 103, 122 S. W. 533, 124 S. W. 85, and approved by the same court in Oar v. Davis, 105 Tex. 479, 151 S. W. 794, the two holdings are not irreconcilable. After quoting from Webster, Justice Brown, who wrote the opinion in Houston Oil Co. v Kimball, concludes:

“Perhaps the best expression is that it must be a fundamental error, such error as being readily seen lies at the base and foundation of a proceeding and affects the judgment necessarily.”

Insufficiency of evidence includes all conditions, from an entire absence of any legal evidence to those where the evidence is hardly enough to discharge the burden assumed by the party securing the judgment. Lying between those extremes are many cases which require an extended examination of a complex statement of facts in order to satisfactorily determine the question presented. Under those circumstances the complaining party must comply with the rules if he wishes his assignments considered, because the error is not in such cases “apparent” or “readily seen” upon an inspection of the record. It will be found that it is this class of cases in which appellate courts have refused to consider assignments couched in general terms only which complain of the insufficiency of the evidence. Such cases are entirely different from those where the absence of any legal evidence is readily seen by even a casual inspection of the statement, of facts. No plaintiff is entitled to a judgment who is not able to produce sufficient legal evidence to establish his claim'. The rendition of a judgment in his favor in the absence of such evidence is a gross injustice and an error which affects the fundamental rights of the defendant. It is an error as grave and serious as any which a court can commit. When we keep in mind the fact that appellate courts are created for the purpose of correcting errors committed on the trial, there appears to be no good reason for giving a restricted construction to the terms of the statute conferring that power. The consideration of meritorious, but informal, complaints on appeal, even when not legally authorized, is not attended by the evil results likely to follow the usurpation of judicial power generally. I believe appellate courts should go as far in that direction as they have the power to go when the ends of justice demand it, and when the language of their limitation is doubtful, that construction should be adopted which enables them to perform their primary duties. In cases like this it required more time to state why the error will not be considered than it does to discover and correct the error.

In my judgment, the complaint on this appeal should have been considered, and the judgment of the trial court reversed.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    HARBIN INDEPENDENT SCHOOL DIST. et al. v. DENMAN.
    (No. 731.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied Jan. 17, 1918.)
    1. Schools and School Districts <§=>24 (1) —Enjoining Taxation — Collateral Attack.
    A petition to enjoin assessment and collection of taxes in a school district, on the ground that plaintiff’s land was not lawfully within its boundaries, but within the boundaries of another legal district, was not demur-rable on the ground that it was a collateral attack upon the incorporation of defendant district; there being no attack on the corporate existence of defendant district or its right to tax lands properly within its boundaries.
    2. Schools and School Districts <§=>24 (2) —Incorporation—Collateral Attack.
    In a suit to enjoin assessment of taxes on plaintiff’s land by defendant school district, on the ground that the land was in another lawful district, defendant’s answer that the incorporation of the latter district was void was a collateral attack upon its corporate existence.
    3. Schools and School Districts <§=>44r— Abolishing — Nonuser.
    Where a school district was declared duly incorporated by an order of the commissioners’ court reciting that an election had been held, etc., and was operated for some time, it could only be abolished by an election held for that purpose, as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1077, 1078, 2856b, and not by nonuser.
    4. Schools and School Districts <§=>102— Redistricting — Validity.
    Where the matter of redistricting was not under consideration by the commissioners’ court when it established a new independent school district, and there was no attempt to change the boundaries of the school district in which plaintiff’s land was situated, and which was at the time of the order operating as an independent school district, the order cannot be held to have the effect of redistrieting under the statute, so as to place plaintiff’s land in defendant school district for purposes of taxation, though the description of the boundaries of the new district embraced plaintiff’s land.
    5. Schools and School Districts <§=>102— Redistricting — Procedure.
    That the Attorney General approved an issue of bonds for defendant school district, where the orders of the commissioners’ court included therein lands of another district, would not have the effect of redistricting under the statute.
    6. Schools and School Districts <§=>27— Creation — Inaccuracies in Description.
    Slight inaccuracies in description of the boundaries of a school district are insufficient to render its incorporation void.
    Appeal from District Court, Erath County ; W. J. Oxford, Judge.
    Suit by H. V. Denman against the Harbin Independent School District and others. Decree for plaintiff, and defendants appeal.
    Affirmed.
    Chandler & Pannill, of Stephenville, for appellants. Hickman & Bateman, of Stephen-ville, for appellee.
   HARPER, C. J.

.Appellee filed this suit against the Harbin independent school district, a corporation, A. A. Alexander and its other trustees, and W. C. Cook, tax assessor, and John Purvis, tax collector, of the district, to enjoin the assessment and collection of taxes against plaintiff upon the lands described in the petition. Its allegations are as follows:

“Plaintiff shows the court: That he owns about 236 acres of land out of the E. D. Tar-ver survey, in Erath county, Tex. That said land is situated in the Cottonwood independent school district. That said Cottonwood independent school district is a corporation duly and legally incorporated under and by virtue of the laws of the state of Texas. That same was incorporated in the year .1888, the election for such purpose having been held on the 2d day of June, A. D. 1888,- and the order declaring such incorporation was duly entered in the minutes of the commissioners’ court, Erath county, Tex., on the 20th day of June, A. D. 1888; the territory included in said Cottonwood independent school district being described as follows: * * * That in the month of December A. D. 1911, an election was held at Harbin, Erath county, Tex., for the purpose of declaring certain territory in and near the said village to be incorporated for free school purposes only. That the territory sought to-be incorporated in said election included plaintiff’s 236 acres of land above referred to, and the defendant Harbin independent school district has continuously since said time, particularly since January 1, 1915, been levying, assessing, and collecting taxes from the plaintiff upon his land. That such attempted incorporation, in so far as same seeks to affect this plaintiff’s said land, is illegal and void. That at said time, and continuously since said time, plaintiff’s said land was and is in the Cottonwood independent school district, and could not be detached from said Cottonwood independent school district and placed in another district in the manner attempted in said election. That the defendants have levied, assessed,' and collected, and intend hereafter, year after year, to levy, assess, and collect, taxes for the said Harbin independent school district at the rate of 50 cents per $100 valuation against plaintiff’s said land above described. Assessment and collection of taxes are wholly unwarranted and unauthorized by law. That plaintiff’s said land is not within the corporate limits of said Harbin independent school district, for the reason that the same is within the Cottonwood independent school district, and is not and cannot be subject to taxation by said Harbin independent school district. That the levy and assessment of taxes against plaintiff’s land constitute and will constitute a cloud upon his title thereto. That if such taxes are continued to be levied, assessed, and collected, as it is the purpose of the defendants to do, and which they will do unless restrained by this court, plaintiff will suffer irreparable injury, for which he has no adequate remedy at law, to the amount of $150. Wherefore, plaintiff prays the court that the defendants, and each of them, be cited to appear and answer this petition, that upon final hearing hereof a writ of injunction issue by this honorable court forever enjoining the defendants and each of them from hereafter attempting to levy and assess said taxes against this plaintiff, and for such other and further orders and relief, general and special, at law or in equity, to which he may show himself entitled.

Defendants answered by general demurrer and general denial, and specially: That June 2, 1888, an attempt was made to create the Cottonwood independent school district, but that such attempted incorporation was void, because no map of the district was filed for record in the county clerk’s office as required by law. That its boundaries were not described with that certainty required by law. That the field notes are vague and uncertain — therefore said attempted incorporation is of no force or effect. That, if it should be held that said order of incorporation of the Cottonwood district is valid upon its face, it nevertheless is of no force ¿nd effect, because the inhabitants thereof have never exercised or attempted to exercise the powers of a corporation, in that they have failed to elect trustees, and have not established or maintained an independent school; failed to certifs' to the department of education the record of such incorporation, and have set over to it its portion of the school funds, have levied no tax, issued no bonds as a district, but at all times since its attempted organization have conducted it as a common school district, and elected only three trustees, etc., submitted to the supervision of the county school superintendent, etc., and therefore by nonuser forfeited its right to claim any rights as an independent district; prayed for forfeiture. That the Harbin independent school district was duly and legally incorporated as provided by law. That thereafter bonds were voted and issued and sold. That the effect of this suit, if successful, would be to reduce the valuation of taxable property in the district. That said bonds are outstanding and constitute a lien upon the taxable property in the district. Therefore plaintiff is not entitled to recover.

The cause was tried by court without a jury, and judgment entered declaring that the Cottonwood district is a valid corporation, that the lands described are within its boundaries, and granted the writ of injunction restraining the Harbin independent school district and its trustees and officers named as defendants from assessing, levying, and collecting taxes upon property described, from which it has been appealed to us for review.

Findings of Facts.

June 20, 1888, Cottonwoodl independent school district was incorporated by order of the commissioners’ court, of Erath county and the lands in question were situated within its declared boundaries. Trustees were elected and the schools began operation as in an independent school district. As to how long or for what years it was so operated the evidence is indefinite, but the proof is positive that fpr most of the time up to 1909 it was operated as a common school district, with three trustees, under the supervision of the county school superintendent. At the latter date, after- the constitutional amendment validating old districts, the district was operated as an independent school district with seven-trustees. In 1904 a special tax was voted for this district in accordance- with the boundaries as declared by the order of the commissioners’ court of 1894. Other than-this, the record is silent as to what lands were considered within the Cottonwood district, as operated after 1894.

In 1893 the commissioners’ court directed a surveyor to subdivide the whole county into convenient school districts. The divisions were made, map filed and the said court, at May term, 1S94, entered its order declaring the boundaries in accordance therewith. By this order of redistricting, the lands sought to be taxed were placed in the Harbin district, then a common school district. In 1911, after an election for the purpose, the court declared the then Harbin district to be an independent school district. It has voted special taxes and bonds. The bonds have been sold and are unpaid.

The first assignment is that the petition is subject to general demurrer, because it constitutes a collateral attack upon the validity of the Harbin school district as incorporated as an independent school district, and that this could only be done by the state upon direct attack. It seems apparent from the pleadings and evidence, above noted, that the question to be here determined is: Is the land sought to be taxed by the Harbin district lawfully within its boundaries, or is it within the boundaries of the Oottonwood district? In respect to its corporate existence, and its right to tax lands properly within its boundaries, it is not questioned; but the appellee says that, because the land sought to-be taxed by it was long prior to its organization lawfully within the Cottonwood district, where it is now taxed, it has never been taken from the Cottonwood district, therefore is not and could hot become a part of the said Harbin district, and therefore not subject to taxation by it.

The record discloses that by an order of the commissioners’ court entered- June 20, 1888, the Cottonwood independent district was declared to be incorporated, which order recites that an election has been held, etc. And the record discloses that it was so operated for some time, and that the land of appellee was situate within its boundaries. So, unless the latter district had no- legal existence, because it was not lawfully incorporated, or that by some proceeding authorized by law the land in question has been taken from it, it was not, at the time of the institution of this suit, a part of the appellant corporation, and, not being lawfully within its boundaries, could not be taxed by it. Judge Gaines, in City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25, said:

“The rule is well established that when the creation of a public corporation — municipal or quasi municipal — is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by * * * the corporation” — citing many authorities.

So it follows tliat, in sustaining- appellants’ proposition that its incorporation cannot be questioned, we must hold that its defense is bottomed upon a collateral attack upon the incorporation of the Cottonwood district. This corporation could only he abolished or changed in the manner provided by law', by an election held for the purpose (article 2856b, 1077, and 1078, Vernon's Sayles’ Statutes of Texas), and there is no pretense that the corporation has been abolished in this way; and it could not be accomplished by nonuser as contended by appellants’ second assignment (State v. Dunson et al., 71 Tex. 65, 9 S. W. 103; Gillespie v. Lightfoot, 103 Tex. 359, 127 S. W. 799).

Had the boundaries of the districts been changed, as now provided by statute may be done by the commissioners’ court, so as to take the land out of the Cottonwood district and place it within the boundaries of the Harbin district prior to its assessment for taxes by the latter, as urged by appellants’ third and fourth assignments? It being contended that the order of the commissioners’ court entered in 1912, which designated the boundaries of the I-Iarbiu independent school district, the call for the election to determine whether it should be incorporated and the final order declaring its incorporation and its boundaries, within which boundaries the lands in question lie, is in compliance with the statute authorizing the commissioners’ court to change the boundaries of independent districts, and that by this order the land was legally transferred to the Harbin district. These orders were entered at a time when the Cottonwood district was being actively conducted as an independent school district, haying resumed operation as such in 1909. The matter of redistricting these districts under the statute was not under consideration by the court, nor is there anything in the record to indicate that the court intended to redistrict; but, on the other hand, for all the record discloses, the lands in question may have been incorporated within the Harbin district by mistake, and without any knowledge that it was incorporated in and being taxed by another — Cottonwood district. Besides, there was no attempt by order to change or re-establish the boundaries of the Cottonwood district, which would leave, if this order should be held effective as a redistricting order, the latter district without well-defined boundaries. Therefore it cannot he held that this order had the effect to redistrict under the statute. Nor would the fact that the Attorney General of the state approved an issue of bonds for the Harbin district, where the orders of the commissioners’ court included the lands therein, have this effect.

The fifth assignment is that the Cottonwood independent school district was not duly and legally incorporated, because its boundaries are not set out with sufficient certainty. We do not find this to be the case from a careful examination of the record. There is a slight inaccuracy of description, hut this is not sufficient to render its incorporation void. Wilson v. Brown, 145 S. W. 639. Eor the reasons above assigned, the assignments are overruled, and cause affirmed.

Upon a former date, we rendered an opinion reversing and remanding this cause, upon the ground that a valid order of the commissioners’ court had been entered redistricting these independent school districts, but at that time our attention was not called to the fact that the statute authorizing the act had not been passed when the order of redistricting was passed. So the former opinion is withdrawn, and the above is entered as the opinion of the court.

WALTIUALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WALLACE et al.
    (No. 1866.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Evidence @=14 — Matters on Common Knowledge.
    It is common knowledge that a child of 18 months cannot walk a distance of 135 yards very rapidly.
    2. Railroads ©=369(4) — Duty on Lookout-Infants on Track.
    A duty of reasonable lookout, varying according to the danger and all surrounding circumstances, to discover infants near or on the track, devolves on those in charge of a moving train.
    3. Railroads @=389(4) — Duty of Lookout-Proximate Cause.
    Failure of train operatives to keep a proper lookout along the track can be deemed the proximate cause of death of an infant near the track only when it appears that proper lookout would have prevented the injury resulting in death.
    4. Railroads @=389(4) — Duty of Lookout-Proximate Cause.
    Where it appeared that a child killed on railroad track was not discernible by train operatives at any time before she reached a point within five or six feet of the track, and tíren only when the approaching train, running 25 or 30 miles an hour, was about 160 steps away, the deatli was not the proximate result of negligent failure of the train operatives to keep proper lookout.
    5. Railroads @=367 — Injuries to Persons on Tracks — Duty to Keep Bushes and Weeds Cut to Allow Lookout.
    In action for deatli of child killed on track, negligence being alleged both as to lookout and permitting bushes and weeds on the side of the track so as to obstruct train operatives’ lookout, the condition of the right of way was important only as an incident affecting the question whether proper lookout was kept.

      Appeal from District Court, Cherokee County.
    Action by Mrs. Lucy C. Wallace and others against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Appellee’s child, about IS months old, was struck and killed by the appellant’s local freight train, and the suit is by appellees for damages, alleging that the death was through negligence of the company (1) in operating and running its train at the speed of 30 or 35 miles per hour; (2) in' failing to keep a proper lookout in approaching the place where the child was killed; and 1(3) in permitting bushes and weeds to grow up by the side of the track so as to prevent its employes operating the engine from seeing any one who might be on or near the track. The defendant answered by general denial and plea of contributory negligence on the part of the parents in permitting the child to be upon defendant’s track. In response to special issues the jury findings were (1) that the railway company was guilty of negligence, (2) in failing to keep a lookout for persons on the track, (3) which was the proximate cause of the death of the child, but (4) that the engineer and the operatives of the train did not discover the child in time to stop the tráin before striking it, and (5) that the ap-pellees were not guilty of contributory negligence. The jury made a finding (7) as to the amount of the damages.
    ’ The appellees’ home was situated near and on the west side of the appellant’s right of way, one mile south of Mt. Selman. About 135 yards south of the house is a private crossing over the track of the railway, placed there by the railway company for the convenience of the landowners on each side of the track. This private crossing is reached on the west through a gate in the fence. The appellant’s local freight train, consisting at the time of about seven or eight cars, .was going south at about 9:30 o’clock in the morning, and at the point of injury in evidence was running at the speed of 25 or 30 miles per hour. The child was struck and killed by the locomotive about eight or ten feet north of the private crossing. It appears from the bloodstains on the ties, that the child at' the time was outside of and near the east rail of the track. No witness testifying saw the child prior to the injury at any time-at or. near the track, or saw the engine strike her. It was shown that after the child was struck the train stopped, the caboose resting on_tlm. crossing. The mother of the child testified:
    “Just a few minutes before the child was run over by the train she had been in my lap. * * * She was in my lap there in the room just a few minutes' before she was run over by the train. * * * She got down out of my lap just before the.accident — a short time before.”
    And this'evidence of the mother is all the evidence as to how long the child had been on or near the track, or going in the direction of the right of way or track, before the injury to it happened. It was proven that the track commences to curve inward to the west about 125 steps back from where the child was killed. It was shown that there was considerable undergrowth and bushes on the right of way, on each side of the track, reaching to within two or three feet of the rails. The bushes had grown to the height of eight or ten feet, according to one witness. There were no bushes between the rails. The witness Dublin testified as follows:
    “I made observation with another party. * * * We got at the point where the child was killed — where the blood stain was on the cross-ties — and then stepped back up the track between 130 and 160 steps — not over 160 steps —and when we got at that point we looked back towards the point where the child was killed— where the blood stain was on the ties. I have been there when the bushes were there and before they had been cut off. When the bushes were there on the right of way and before they had been cut off you couldn’t stand at the point between 130 and 160 steps from the blood stain and see anybody at that place unless they were within five or six feet of the track. At that time and under those conditions you couldn’t have seen a child 18 months old back at that point looking to the place the child was killed, until the child had gotten within five or six feet of the track. You couldn’t have seen the child back more than five or six feet from the track proper. The bushes and undergrowth would have prevented any one seeing the child until it had gotten within five or six feet of the track.”
    E. B. Perkins, of Dallas, and Marsh & Mc-Ilwaine, of Tyler, for appellant. Perkins & Perkins, of Rusk, and W. J. Townsend, of Austin, for appellees.
   LEVY, J.

(after stating the facts as above). [1-5] A question made by the assignments is whether or not the evidence in the record in support of the plaintiffs’ action for damages is legally sufficient to support the findings by the. jury that the death of the child was the proximate result of the negligent failure of the operatives of the train to keep a proper lookout. The blood stains on the cross-ties outside and near the east rail, and at no other place, at a point between eight and ten feet north of the private crossing, would indicate that the child met her death at that particular place. She was then outside of and near the east rail, and not on the track between the rails. The fact that the child met her death at the point mentioned, in connection with the further fact that the train was seen to stop at the crossing, would authorize the inference that the locomotive struck and killed her. In order to reach the ties near the east rail, the child, in coming from the house located on the west side of the track, must have crossed the track at some moment before being struck by the locomotive. But how long she was upon the right of way or near the track in advance of the train does not appear except from presumption. According to the mother’s evidence the child was in her lap in the house “a few minutes before,” “just a short time before,” the injury. In this “few minutes before” the injury the child, in order to reach the place of injury, would have to walk 135 yards, the distance, it appears, from the house to the crossing. From common knowledge a child of that age may not walk that distance very rapidly. And it appears that the freight train, headed in the direction of the crossing, was running at a speed of 25 or 30 miles an hour. It does not appear from any evidence where the train was “a few minutes before” the injury, but all the circumstances reasonably point to the only inference that the train was fast approaching the crossing at the time the child reached, or very nearly so, the crossing. But there does not appear any evidence to show, or circumstances tending to show, that the operatives of the train saw the child at any túne at any point before the injury, except the bare, unexplained fact that the train stopped, the caboose resting on the crossing. This act of stopping the train at the place would indicate that the operatives of the train had tried to stop the train either before actually striking or upon striking the child. And the circumstances are in keeping with the inference that the operatives of the train did not discover the child in time to avoid striking her. The jury in this case even so found. And the operatives of the train could not, it appears, from a point 160 steps from the place where the child was killed, see the child on the right of way, by reason of the bushes, and “until the child had gotten within five or six feet of the track.” There does not appear any evidence as to the distance within which the train could be stopped, running as it was at the speed of 25 or 30 miles an hour. A reasonable lookout, varying according to the danger and all surrounding circumstances, to discover infants near or on the track is a duty devolving on those in charge of a moving train. Railway Co. v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708. But a failure of the operatives of the train to keep a proper lookout along the track, if they do fail, can only be deemed the proximate cause of the death of an infant near the track when it appears that the keeping of such lookout would have prevented the injury resulting in death. Railway Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049. And here it appears from all legitimate inferences that the child .was not discernible by the operatives of the train at any time before she reached a point within five or six feet of the track, and then so near in advance of the approaching train as to render unavoidable her being struck by the locomotive. It cannot be presumed that the operatives failed to keep a proper lookout, but such fact would have to appear by evidence or inference from circumstances. The condition of the right of way is important in the case only as ■ an incident affecting the question as to whether or not a proper lookout was kept by those in charge of the train.

It is concluded that the judgment "sEould be reversed, and, in view of the record, that the cause be remanded, and it is accordingly so ordered.
      <§=For other oases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes


text:
    SESSIONS et al. v. SANDERS et al.
    (No. 1872.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 28, 1917.
    On Motion for Rehearing, Jan. 3, 1918.)
    1. Bints and Notes <@=>525 — Goo» Faith-Evidence.
    In an action to cancel a deed given by plaintiffs on part of their homestead, and to restrain a sale under a vendor’s lien, reserved in a note for the purchase price assigned to defendants, evidence held to require a finding that the holder of the vendor’s lien note knew that such conveyance was part of a scheme to obtain the payment of an antecedent debt, and that he was therefore not an innocent holder for value.
    On Motion for Rehearing.
    2. Appeal and Error <@=>1175(1) — Disposition of Cause — Final Judgment.
    In an action to cancel a deed on part of plaintiffs’ homestead, and to restrain foreclosure of a vendor’s lien thereon, reserved in a note assigned to defendant, where judgment refusing relief against the holder of the note is reversed on facts showing plaintiffs are entitled to the relief asked, judgment will be entered without remand to enable defendant to recover a personal judgment on the note; no such relief having been demanded, and the trial court having no jurisdiction thereof.
    3. Judgment <@=>590(4) — Conclusiveness — Matters Not in Issue.
    A decree canceling a deed for part of plaintiffs’ homestead and enjoining the assignee of a vendor’s lien note from selling the property will not bar an action at law on the note, where personal liability on the note was not litigated.
    Appeal from District Court, Cherokee County; D. D. Guinn, Judge.
    Action by Laura Sessions and others against Armistead Sanders and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and rendered.
    John C. Box, of Jacksonville, for appel-. lants. Norman, Shook & Gibson, of Rusk, for appellees.
   HODGES, J.

In 1914 Laura Sessions owned in her separate right a tract of land of less than 200 acres, which she and her husband, Owen Sessions, occupied as a homestead. Both of them were aged negroes, and appear to have had little property besides this tract of land. In November, 1914, Laura and her husband executed a deed conveying to Armistead Sanders, a relative, 76 acres of the homestead tract for a cash consideration of $10, and a note for $375, payable one year after date, in which the vendor’s lien was retained. This note passed by assignment to the appellee T. S. Hatton, who later filed suit thereon and sought a foreclosure of the vendor’s lien therein retained. In due course of time a judgment was rendered on the note in Hatton’s favor and for a foreclosure of the lien. Sessions and his wife were not parties to that suit, and claimed that they knew nothing of its existence until some time after a judgment had been rendered. Before any order of sale was issued on that judgment they instituted this suit against Armistead Sanders and T. S. Hatton and the sheriff of Cherokee county. In it they asked that the deed theretofore made by Sessions and his wife to Armistead Sanders be canceled, and that the sale of their land under the decree foreclosing the vendor’s lien in favor of Hatton be enjoined. They sought this relief upon the ground that the transaction in which the note and deed originated was a device to incumber a part of their homestead with a mortgage to secure the payment of a pre-existing debt due from Owen Sessions to Hatton, which was well known to Hatton and in which he took part. They allege that they were old and ignorant and unfamiliar with such affairs, and did not understand the nature of the transaction. In a trial before the court without a jury a judgment was rendered canceling the deed from Sessions and wife to Sanders, but the court refused to restrain the enforcement of the judgment. In substance the court finds that the property in controversy was the homestead of Sessions and wife; that the deed and note referred to were executed in pursuance of a scheme to incumber the homestead to secure the payment of a debt to Hatton, but that Hatton was not a party to that scheme and was an innocent holder of the note for value, and for that reason was entitled to be protected in his lien. The appellants .Sessions and wife appeal from that portion of the judgment which refused the relief sought against Hatton; they claim that the evidence was of such character that the court should have granted all the relief prayed for.

The court having found that the property in controversy was a part of the homestead of the appellants, and that the execution of the note and deed was a device for mortgaging the homestead for the payment of the debt due Hatton, a failure to enjoin the enforcement of the judgment can be sustained only upon the ground that Hatton was justifiably ignorant of the intention of the parties. We are of the opinion that the state of the evidence is such as to show that Hat-ton either knew the true nature of this transaction, or was familiar with circumstances which clearly indicated the purpose of the parties. The undisputed testimony shows that the appellants’ tract of land consisted of less than 200 acres, that Owen Sessions was indebted to Hatton in the.sum of $375, and that Hatton was pressing him for the payment of the debt. Sessions had proposed a lease or some kind of a device by which to secure Hatton, but Hatton had informed-him that nothing less than an absolute conveyance of the property would be valid. The evidence shows that Hatton devised the plan of having Sessions convey the land to Sanders and Sanders execute the note which was given in consideration of the conveyance. It was further shown that Hatton alone selected the quantity of land that was to be conveyed, designated the lines, and determined what the price should be, without any conference or agreement with Sanders; that he furnished the sum of $10, which was paid as a cash consideration; that he • had the note and deed prepared by an attorney, who acted upon his instructions alone; that he had an assignment of the note prepared from Sessions to himself, and then sought the parties and had the papers executed according to his own dictation. When he repaired to the place where the papers were to be signed he found that Sanders was not there; he took the trouble to go out and hunt him up and bring him there. He knew that Sanders did not know how much land he was buying, nor how much he was to pay for it. The evidence also tends strongly to show that Hatton knew that Sessions and his wife were to remain in the undisturbed possession of the property. When the note matured he never even demanded payment of Sanders, but instituted a suit for the purpose of foreclosing his lien. He admitted on cross-examination that in consummating the transaction he was looking after getting enough land to secure his debt. It is inconceivable that a man of ordinary intelligence, occupying the situation that Hatton did, as familiar as he was with the condition of the parties and every detail of the transaction, could have been duped into believing that the conveyance from Sessions and wife to Sanders was a bona fide sale of the land.

We are always reluctant to disturb the judgment of a trial court upon issues of fact, but in this instance we think the state of the evidence is such that it is our duty to reverse this ruling and render judgment for the appellants; and it is accordingly so ordered.

On Motion for Rehearing.

Appellee T. S. Hatton has filed a motion for rehearing, in which he asks that this case be remanded instead of judgment being here rendered. This modification in the order of this court is sought upon the ground that appellee Hatton, if not entitled to a lien upon the premises referred to, is entitled to a personal judgment against Sessions and his wife for the amount of the original indebtedness. This suit was one for the purpose of enjoining the sale of the premises described, and to cancel the deed which it was alleged was designed as a mortgage. No personal judgment is sought against the appellants in that proceeding; in fact, in the absence of a lien, the district court would be without Jurisdiction to render a personal judgment against the appellants for the amount sued for. The judgment rendered by this court will have no effect upon the right of the appellee Hatton to institute proper proceedings for the purpose of recovering a personal judgment against the appellants in a court of competent jurisdiction.

The motion for rehearing is overruled.
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author: WILLSON, C. J.

text:
    MENEFEE et al. v. COLLEY.
    (No. 1858.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 7, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Trespass to Try Title <®=>41(1) — Evidence — Title.
    In trespass to try title, proof by plaintiff of actual possession, under claim of ownership, without reference to whether it was continuous within the statute of limitations or not, was prima facie evidence of title, sufficient, unless rebutted, to authorize recovery against a defendant entering upon the land a few months before and taking possession thereof from a tenant without plaintiff’s consent.
    2. Execution <$=>320 — Recitals in Sheriff’s Deed.
    Recital in sheriff’s deed that it was made under an alias execution on a judgment, after proper levy and advertisement, is not conclusive, though a long time has elapsed since the date of such deed, but it is merely some evidence such execution was issued and levied; such recital not being one the sheriff is required to make in discharge of his official duty.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by Mary E. Colley against Joseph Menefee and another. From judgment for plaintiff, defendants appeal.
    Affirmed.
    The suit was by appellee against appellants Joseph Menefee and Henry Lacy. It was to try the title to and for possession of 730 acres of the Brooks Williams survey in Cherokee county. Appellants disclaimed title to all except 556 acres of the land, and answered, as to the 556 acres, by a plea of “not guilty.” The trial was to the court without a jury. The appeal is from a judgment in favor of appellee for the whole of the 730-acre tract. It appeared that appellant Lacy was a tenant of his co-appellant, and that his rights, if any he had, were referable entirely to his tenancy. Therefore the fact that he is a party to the appeal will be ignored in what is to be said, and the controversy will be treated as one between Menefee and appel-lee only, as it in fact is.
    Hurt & Hurt and Geo. A. Titterington, both of Dallas, for appellants. Thomas B. Greenwood, of Palestine, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The court found that from 1S78 to the trial of the case in February, 1917, appel-lee openly claimed to own the 730-aere tract (of which the 556 acres in controversy were a part) described in her petition, and that each of the years intervening, except the year 1905, having rendered same for the purpose, she paid all taxes assessed against the land. The court further found that during periods of four years and less each between 1878 and 1901, appellee (by tenants) was in actual possession of the land, and that continuously from 1901 to November 21,1916, she, claiming a right to it under a deed (describing it) to her and her deceased husband (whose interest she had acquired) from heirs of Wm. Bradshaw, deceased (under whom appellants claimed), dated December 9, 1886, and duly recorded May 2, 1896, by tenants had actual, peaceable, and adverse possession of the land, using and enjoying it and cultivating portions of the 556 acres thereof claimed by appellant. The court further found that appellant “on advice of counsel camped on the 556 acres, which was then in the actual possession of plaintiff’s tenants, and boarded with one of plaintiff’s tenants from August to November 21, 1916,” when “plaintiff’s tenants vacated the land,” leaving appellant in possession thereof. The finding that appel-lee’s possession of the land was continuous from 1901 to November 21, 1916, is attacked on the ground that it was without the support of testimony. The sufficiency of the testimony to support the other findings specified is not questioned in any of the assignments.

A phase of the case presented by the unchallenged findings specified therefore is that appellee was in the actual possession of the land, claiming to own it when appellant entered upon same and took the possession thereof from her tenant without her consent, and was holding same at the time of the trial.

Such prior actual possession by appellee, without reference to whether it was continuous within the meaning of the statute of limitations or not, was prima facie evidence of title in her and entitled her to recover as she did, unless it was rebutted by testimony showing that she did not have the title. Keys v. Mason, 44 Tex. 140; House v. Reavis, 89 Tex. 626, 35 S. W. 1063; Kirby v. Boaz, 41 Tex. Civ. App. 282, 91 S. W. 642; Randell v. Robinson, 172 S. W. 735; Teagarden v. Patten, 48 Tex. Civ. App. 571, 107 S. W. 909.

Appellant claims that the presumption of title in appellee arising from her prior possession of the land was overcome by testimony showing that the title was in him and others, as heirs of one Walter West or his descendants; or if it was not, that it was in one G. W. Copeland. The claim is predicated on testimony showing, as found <by the court: (1) That Rusk and Henderson for the use of Starr, on November ¡3, 1851, recovered a judgment against Wm. Bradshaw and others for $1,231; (2) that on September 5, 1853, the sheriff of Cherokee county, as such, by a deed containing a recital that it was made “under an alias execution on said judgment after proper levy and advertisement,” conveyed “all of the right, title, and interest of Wm. 'Bradshaw” in the land to J. S. Able and W. P. Brittain, who conveyed to G. • W. Copeland May 10, 1854, who conveyed the tit-le he derived from Able to Jesse Duren November 24, 1885, who conveyed the 556 acres in controversy to Walter West January 80, 1860; that said West resided on said 556 acres from 1860 to November 27, 1866, when he died intestate; (3) that appellant’s mother, who died before this suit was commenced, was a daughter of said West, and after his death married T. A. 'Lindsey (appellant’s stepfather), who resided on the 556 acres until about 1872.

The conclusion of the court, in the face of the findings specified, that appellants had wholly failed “to establish any title whatsoever in themselves,” is challenged as unauthorized. The conclusion was based on a further finding made by the court “that no valid execution was issued on said judgment (in favor of 'Rusk and Henderson for the use of Starr against Wm. Bradshaw), and that no valid sheriff’s sale was ever made under any execution on said judgment.” The parties having agreed “that after proper search no execution or sheriff’s return thereon” issued on the judgment in Question could be found, appellant insists that the court should have treated the recital in the sheriff’s deed as establishing as a fact that an execution was issued on the judgment and levied upon the land. If it should be conceded that the court might, because of the long time-which had elapsed between the date of the sheriff’s deed and the date of the trial, have presumed that an execution was issued on the judgment, it must be further conceded that he was not bound to indulge such a presumption. The recital by the sheriff in his deed was not one he was required to make in the discharge of his official duty. Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; and see 3 Freeman on Executions, § 329. The most appellant had a right to claim on account of the recital was that the court under the circumstances of the case should consider it as evidence on the issue as to whether the title of Wm. Bradshaw passed to Able and Brittain by a sale made by the sheriff under the judgment or not. We think the conclusions of the court that the sheriff was not authorized by a valid execution issued on that judgment to soli the land, and therefore that the title in Wm. Bradshaw did not pass to Able and Brittain, were amply supported by testimony showing that in a suit commenced by Wm. Bradshaw against Jesse Duren in 1859 judgment was rendered in 1869 in favor of said Bradshaw’s administrator against Duran's administrator; that it was determined by the finding of a jury in that case that Duren’s claim of title to the land by virtue of a sheriff’s sale thereof was “fraudulent and illegal”; and that on September 21, 1872, by virtue of a writ issued August 12, 1872, on-the judgment in his favor, Wm. Bradshaw’s administrator was by the sheriff of Cherokee county placed in possession of the land “by agreement of parties living on said land.” The “parties” then living on the land, it seems from the testimony and findings of the court, were parties who claimed a right to be there as the successors to the title in Walter West. It was not shown that any one ever in any way asserted a claim to the land under the sheriff’s deed between 1872, when the administrator of Wm. Bradshaw was placed in possession thereof as stated, and 1916, when appellant took possession thereof as stated. A fair inference from the facts recited was, we think, that the sale by the sheriff was not authorized by an execution issued on the judgment. If the sale was not so authorized, it was, of course, void, and the sheriff’s deed passed nothing to the purchaser. Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53.

Having reached the conclusion that findings of the court specified were authorized by the testimony and support the judgment, it is not necessary to inquire whether other findings made by the court, and which also sufficiently support the judgment, were authorized by the testimony or not.

The judgment is affirmed.
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