author: HIGGINS, J.

text:
    BLACKWELL et al. v. LASSETER et al.
    (No. 858.)
    (Court of Civil Appeals of Texas. El Paso.
    May 3, 1918.
    Rehearing Denied May 23, 1918.)
    1. Homestead <&wkey;35 — Essentials—Use.
    To impress farm with homestead character, under Const, art. 16, § 51, the land must have been used for the purposes of a home. •
    2. Homestead <&wkey;31 — Essentials — Intention.
    Intention of the parties to make a farm their homestead is insufficient to impress a tract of land with a homestead character, when such land is detached from the premises on which the rural home of the parties is situated. .
    3. Homestead <&wkey;35 — Essentials—Character oe Use.
    Since it is the principal use which müst be looked to, to determine whether land is a homestead, the mere use on rural homestead of grubbed-out stumps taken from a detached tract did not show use of such tract as a homestead; the principal purpose of removing them being to clear the land for cultivation.
    4. Homestead <&wkey;38 — Essentials—Designation.
    Land in controversy, being detached from the tract upon which the home is located, cannot become a part of the homestead by anything less than would be necessary to designate the homestead originally.
    5. Homestead <&wkey;35 — Essentials — Extent oe Use.
    The fac.t that a 160-acre tract of land was devoted to bringing in an income used for the support of the family living on another tract did not alone constitute a user of the 160-acre tract for the purpose of a home.
    6. Homestead &wkey;>168 — Temporary Renting.
    The constitutional proviso as to temporary renting of homestead does not apply until after the homestead character is once established.
    7. Homestead <&wkey;57(3) — Evidence — Sufficiency.
    Evidence held insufficient to establish homestead character of detached tract, income \from which was used for support of the family.
    Appeal from District Court, 'Mitchell County ; W. W. Beall, Judge.
    Suit by M. E. Lasseter and husband against J. Blackwell and otliers. Judgment for plaintiffs, and defendants appeal..
    Reversed and rendered.
    G. N. Harrison and O. R. Miller, both of Brownwood, and Shepherd & Sandusky, of Colorado, Tex., for appellants. M. Carter, T. R. Smith, and Royall G. Smith, all of Colorado, Tex., for appellees.
   Statement of Case.

HIGGINS, J.

M. E. Lasseter and her husband, John IS. Lasseter, appellees brought this suit against appellants to recover a 100-acre tract of land. The appellants claim title under a deed of trust covering the premises, dated April 1,1912, executed by John E. Lasseter to J. E. Hooper, trustee, for Floyd Shock, beneficiary, and foreclosure' proceedings thereunder. Upon the view which we have of the case, it is necessary only to pass upon the assignment complaining of the refusal of a peremptory instruction in favor of defendants.

The jury found that on April 1, 1912, the land in controversy was a part of the rural homestead of the Lasseters, and judgment in their favor -was rendered upon this finding. If there was no evidence to support this finding, the peremptory instruction should have been given. In its aspect most favorable to the Lasseters, the evidence discloses the following facts:

The land in controversy was conveyed to John E. Lasseter on December 10, 1903. On October 17, 1906, he acquired a 31-acre tract immediately adjoining the town of West-brook, in Mitchell county. Prior to 1907, the Lasseters with their children resided for many years in Williamson county, where John E. Lasseter was engaged in farming upon rented land. He resided upon the land so rented. When he acquired the 160-acre tract of land, there was about 60 acres prepared for cultivation. There was a three-room house, cribs, and barn on it. The house was wrecked by storm, and Lasseter tore it down and built a barn out of it. He also put up another house to replace the wrecked one. This was done prior to their removal to Mitchell county, which they did in 1906.

Just after moving to Mitchell county, John Lasseter bought the 31-acre tract. It was then raw land. He put some of it in cultivation, built a house, crib, and smokehouse thereon; also put a well and cistern on it. The 160-acre tract is about 4 miles distant from the 31-acre tract as the road runs, and about 3 miles in a direct line. The Lasse-ters never lived upon the 160-acre tract, and when they came to Mitchell county they resided in the- town of Westbrook for about a month, until the house was built on the 31-acre tract. Upon its completion, they moved therein, and have lived there ever since. This house is just across the street from the platted portion of Westbrook. Two, three, or four ji-ears after moving to Mitchell county, John Lasseter hired Mexicans and grubbed some of the land upon the 160-aere tract, and eventually there was about 100 or 125 acres in cultivation. The grubs he hauled to his home and used them. The 160-aere tract prior to, and all times subsequent to, the time the Lasseters came to Mitchell county, was leased to tenants for one-third of the grain and feed crops, and one-fourth of the cotton. The cotton was marketed by the tenants, who accounted to Lasseter for his share of the proceeds. His share of the grain and feed crops Lasseter caused to be hauled to his home on the 31-acre tract, where he used it to feed his stock. The entire proceeds of the 160-acre tract were used by Lasseter to support himself and family.

Lasseter also owned a 320-acre tract of land in Mitchell county, which he rented in the same manner and used the proceeds thereof for like purpose. This 320-acre tract lies 2 miles west of the 100-acre tract. John Lasseter testified that he at all times claimed the 160-acre tract as his homestead. At the time of the trial, in 1917, John Lasseter was 70 years old. For several years prior to his removal to Mitchell county, the health of himself and wife had been bad, and the evidence shows that, since moving to Mitchell county, the infirmities incident to his age and health were such that he was physically unable to actively engage in farming operations. The evidence is sufficient to show that his physical condition was such that the only way he could use the 160-acre tract for the support of himself and family was to rent it and use the proceeds for such support.

Prior to the removal to Mitchell county, the I-Iamilton-Lasseter Hardware Company, a corporation, was organized by John Lasse-ter and his son, Z. T. Lasseter, and one Hamilton. ■ This company did a mercantile business in Westbrook. John Lasseter and Hamilton each owned $1,700 of its capital stock. Z. T. Lasseter owned $1,600 of the stock. For about a year after John Lasseter came to Mitchell county, he and Z. T. Lasseter superintended and ran the business of the corporation, though John Lasseter received nothing from the corporation in salary or dividends while he was so engaged. In 1908 John Lasseter sold his stock in the corporation to L. E. Lasseter. Thereafter John Las-seter continued to work for the corporation, but not under any regular contract of employment. It seems that he acted as a salesman whenever he felt like assisting, and for the services which he rendered in that way he was allowed groceries and supplies from the store. His connection appears to have been a sort of a mutual co-operative relation.

On November 28, 1907, Lasseter and his wife executed, and on the next day duly recorded, a homestead designation, wherein the Sl-aere and 160-acre tracts were designated as their homestead. On May 13, 1014, Jolm Lasseter executed a deed of trust on the 320-acre tract to R. Y. Prigmore, trustee, for Monnig Dry Goods Company, beneficiary. In this instrument he designated the 31-acre tract of land as his homestead and declared that same was all of the property claimed by him to be exempt under the law. Upon the trial, it was a contested issue whether the 31 acres was a rural or urban homestead. The .iury found it to be rural, and no issue is made on this appeal as to the correctness of this finding.

Opinion.

To impress the 160-acre tract with the homestead character, it must, in the language of the Constitution, have been “used for the purposes of a home.” Section 51, art. 16, Const. Baldeschweiler v. Ship, 21 Tex. Civ. App. 80, 50 S. W. 644. In Ford v. Fosgard, 25 S. W. 445, it was said:

“The property must partake of the character of homestead to entitle it to this distinction. It must. belong to the homestead; it must be related to it by use in connection with its enjoyment to give it the privilege of homestead protection.”

The only facts disclosed by this record in any wise tending to impress the homestead character upon the land are: (1) The intention of the Lasseters that it should be their homestead, and claim that it was. (2) The use of the grubs taken from the land at the time the clearing was done by some Mexicans employed for that purpose. (3) The appropriation of the rents to the support of the family.

Intention alone is insufficient to so impress a tract of land detached from the premises upon which a rural home is situate. The intent of the parties is unimportant, unless accompanied by a use sufficient to impress the homestead character upon the property. Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832; O’Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829.

The hauling of the grubs to the home on the 31 acres, and use there, was a mere incident to the clearing of the land. The land was grubbed for the purpose of preparing it for cultivation, and not to obtain the grubs for any use at the home. It is the principal use which must be looked to in determining whether or not the land is impressed with the homestead character. Blair v. Bank, 61 Tex. Civ. App. 441, 130 S. W. 718, and cases cited.

There remains only to be considered the use of the rents for the support of the family. In Blum v. Rogers, 78 Tex. 530, 15 S. W. 115, an urban homestead ease, Justice Gaines said:

“To protect lots in a town or city not actually occupied by the family residence or its appurtenances, they must be substantially used by the family for home purposes. When they are detached by ihclosuros from the homestead lot proper and are improved for the purpose of being leased to tenants and of thereby producing an income, it is evident they are no longer used as adjuncts of the family residence, and should bo no longer exempt from forced sale. The mere fact that portions of the land may be occasionally used for a family purpose, such as to grow vegetables, to shelter live stock, or to furnish water, is not enough to shield it from sale under execution for the payment of the owner’s debts. The principal use to which they are subjected mu,st be looked to, and where, as 'evidently appears in this case, the main purpose to which the property is devoted is to bring in an income, and the family use is not only secondary and subordinate but of trivial importance, the property. should be no longer deemed a part of the homestead. * * * We do not wish to be understood as holding that the mere renting of a part of the homestead will subject it to forced sale. But what we do hold is that when a town or city homestead is practically divided, and a part or parts are improved with buildings and other appurtenances which are neither necessary to nor intended for the convenience of the family, and they are evidently held for the purpose of being leased, an unimportant subsidiary use for household purposes will not protect tlie lots so improved from forced sale in a case like the present, where the lots not so appropriated possess every convenience of a comfortable home.”

So far as concerns a use for home purposes, the rule announced in Blum v. Rogers has been held to be applicable to rural homesteads. Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748, on rehearing; Roberts v. Cawthon, 26 Tex. Civ. App. 477, 63 S. W. 332; Haswell v. Forbes, 8 Tex. Civ. App. 82, 27 S. W. 566. The land in controversy being detached from the tract upon which the Lasseter home was located, it could not become a part of the homestead, or be impressed with the homestead character, by anything less “than would be necessary to. designate the homestead originally. * * * When the lands are separated, there must be such use as will amount to a designation of homestead of the subsequently acquired parcel, as fully as the same would he required in the original designation of homestead.” Brooks v. Chatham, 57 Tex. 31.

The main purpose to which the 160-aere tract was devoted was to bring in an income, and the fact that this income is devoted to the support of the family, Lasseter’s share of the grain and feed crops being used in kind, did not alone constitute a user of the land for the purpose of a home. Upon the original opinion in Autry v. Reasor, Judge Gaines said:

“We do not hold that, if the land had been rented and the proceeds sold and the money used for the support of the family, this would have been sufficient to exempt the property.”

And in concurring in the result Judge Williams said:

“I am not prepared, however, to agree that the single circumstance of the use of the rents, even in kind, for the support of the family was sufficient to impress the rented land with the homestead character.”

In this case, upon rehearing, it was said that there was no reason why the rule announced in Blum v. Rogers, that the building of a home within the town on a, certain lot and renting same, deprived it of its homestead character, should not apply to a rural homestead and expressly withdrew any expressions to the contrary in the original opinion.

Appellees rely upon the case of Baldeschweiler v. Ship, supra, decided by the Galveston Court of Civil Appeals. The facts in that ease disclose that Ship bought the detached tract of land for the purpose of a home, because he could not get land enough adjoining his home place for his support. He was a farmer, but his physical condition was such that he was unable to actively engage in farming operations. The tract upon which Ship lived and the detached tract were farmed under the same kind of' arrangements, namely, the tenants paying a part of the products, some of which was used in kind by Ship, and the rest sold, and the proceeds used for the support of Ship and his family. The court upheld a finding that the detached tract was a part of the homestead. The ground of the decision was thus announced:

“The mere fact that means realized from the use of property separated from that upon which the residence is situated are used in supporting the family is not claimed, of itself, to work the exemption in all cases. But where all the land is employed by the head of the family, in the pursuit of his business appropriate to the country, such as farming, and used together for the same purpose of sustaining the family in the homo, We can see no reason for saying that it is not all exempt; nor can we see that the character of the arrangement by which he utilizes it for such purposes, whether by his own labor, by that of hired hands, or of tenants, should be made decisive. By any or all of these methods of farming the land may be made the means of maintaining the home and supporting, the family. To constitute a designation as part of the homestead of a tract separated from the place of residence ‘there must be something more than mere intention; there must be some act done which will evince an intention to use it as a home, or * * * to use it in some way. in connection with the home place, for the comfort, convenience, or support of the family. * * * Such designation must consist in the use of the detached parcel or parcels, in connection with the home place, or in such preparation to so use as will clearly, evidence the intention to so use; but this must vary according to the character of the detached parcel of land, and the purpose for which it is adapted and for which it is intended.’ Brooks v. Chatham, 57 Tex. 33, 34. The land here in question was actually used in the same way and for the same purposes as that upon which the party lived. All was done under a scheme devised, by which it might best be made available for the support of the family. This manner of use was adapted to his condition and that of the family, and was one to which the property was adapted. In our opinion it was such as to make that connection with the use of the home itself which the constitution and the decisions require. Pridgen v. Warn, 79 Tex. 588, 15 S. W. 559.”

In the case at bar, Basseter bought the 160 acres several years before he moved to Mitchell county, and it does not appear that he bought it for a homestead. It may be, and is by us conceded, that this is not a material distinction, because he had the right to subsequently impress it with the homestead character. But the material distinction lies in the fact that it does not appear that the rental of the 160-acre tract by Las-seter was done under a scheme of farming devised for the purpose of making the land available for the support of himself and family, .basseter, upon coming to Mitchell county, became interested .in a mercantile business, and became and for some time continued more or less actively engaged in that. The use which he made of the 160-acre tract was incidental, and it was not principally used for the purpose of a home. Lasseter’s use of the 160-acre tract was the ordinary case of a man owning a tract of land which he rented, using the proceeds for the support of himself and family. He made exactly the same use of the 320-acre tract which he also owned.

In this connection it is pertinent to note that Judge Williams, who wrote the opinion in the Baldeschweiler Case, was a member of the Supreme Court when the opinion in Autry v. Reasor was delivered, and in this case, in concurring in the original affirmance of the latter ease, he expressly stated that he was not prepared to agree that the single circumstance of the use of the rents, even in kind, for the support of the family, was sufficient to impress the rented land with the homestead character. In the case at bar, it seems to us that the only circumstance tending to impress the homestead character upon the 160-acre tract is the fact that its rental proceeds, a portion thereof being used in kind, were employed for the family support. In cases of this nature, it is impossible to announce any general rule which can be unerringly applied to different facts. Each case, in large measure, must be determined upon its own facts. We have had great difficulty in reaching a conclusion in this case, but believe it ruled by Autry v. Reasor. See, also, Allen v. Whitaker, 18 S. W. 160.

The constitutional proviso as to temporary renting is not presented by this case. The homestead character must have been first impressed upon property before this proviso can ever become pertinent. Under our view, the 160-acre tract was never impressed with that character. The case seems to have been fully developed, and upon the facts presented we are of the opinion that judgment should have been rendered for appellants.

The case will therefore be reversed, and rendered in their favor. It is so ordered.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    WATTS v. BAKER et al.
    (No. 5903.)
    (Court of Civil Appeals of Texas. Austin.
    March 27, 1918.
    Rehearing Denied May 1, 1918.)
    Judgment &wkey;>447(3) — Setting Aside — Fraud.
    Although the jury found that defendant was prevented from defending a suit by the fraud of plaintiff, defendant was not entitled to an injunction against the judgment, where the jury also found that defendant was liable for the bill which was the basis for the judgment, although the bill was barred by limitations, defendant not having alleged that she would have pleaded limitations.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Suit by Mrs. Dora Watts to restrain Dr. E. B. Baker and others from selling stock levied on under execution. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Mears & Watkins, of Gatesville, for appellant. McClellan & McClellan, of Gatesville, for appellees.
   JENKINS, J.

Appellant brought this suit to enjoin the sale of certain stock levied on by a constable of precinct No. 1, Coryell county, .by virtue of execution issued out of the justice court of precinct No. 1 of said eountj, in cause No. 9181, wherein Dr. Baker obtained a judgment against appellant for medical services rendered to the child of appellant’s son. Appellant alleged in her petition for injunction that when citation was served upon her in said suit she sent her son, Jim Gooch, to Dr. Baker, telling him that she did not owe the debt, and that Dr. Baker sent her -word that she need not appeal in said cause, and that he -would immediately dismiss the same; that she relied upon said statement, and did not know that judgment had been rendered against her in said cause until the execution herein sought to be enjoined was levied upon her property. The case -was submitted upon special issues, and the findings of the jury support the foregoing allegations.

In addition to the issues with reference to the matters above set forth, the court submitted issue No. 5, as follows:

“Did the defendant, Dr. E. B. Baker, make the visits which forra the basis of the judgment obtained by him in cause No. 9181, in the justice court of precinct No. 1, of Coryell county, Tex., upon an agreement with Mrs. Watts to the effect that she would pay for his medical services in the family of her son, William Gooch?” To which the jury answered, “Yes.”

The allegations in plaintiff’s petition, which the jury found to be true, aré sufficient to have entitled her to an injunction herein, if she had alleged and proven that she had a valid defense in cause No. 9181. She made such allegation, but the jury found against her thereon. In order to obtain an injunction against a judgment rendered in a court of competent jurisdiction, it is necessary, not only to show that the applicant was prevented by the fraud of the other party from having his clay in court, but also that he had a valid defense to the cause of action which he could and would have presented but for the fraud of the opposite party.

It appears from the record herein, that the account sued on in cause No. 9181 was barred by limitation when said suit was filed, but appellant - does not allege in her petition for injunction that she would have pleaded limitation in said cause, and she did not plead limitation in the county court. Her only allegation in reference to the injustice of the judgment obtained in the justice court was that she did not owe the debt, and had never owed the same.

No valid defense being alleged and shown in this cause, the court did not err in entering judgment dissolving the temporary injunction which had theretofore been entered herein.

Affirmed.


author: KEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. CLEMENTS.
    (No. 5877.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1918.
    Rehearing Denied March 27, 1918.)
    1. Carriers <&wkey;230(4) — Injury to . Live Stock — Actions—Question for. Jury.
    In an action against a carrier to recover damages for injuries resulting to live stock in shipment, where there was a sharp conflict in the testimony as to their condition when shipped, the question of negligence of carrier in transit must be submitted to the jury.
    2. Trial <&wkey;139(l) — Question for Jury — Weight of Evidence.
    Though it is the duty of the trial judge to set aside a verdict when it is contrary to the great preponderance of the testimony, that rule does not affect the primary right to have the case submitted to the jury.
    3. Appeal and Error <&wkey;719(I0) — Review-Necessity of Assignment of Error.
    The action of the trial court in refusing- to set the verdict aside cannot be reviewed, where not raised.by an assignment of error.
    Appeal from Coryell County Court; H. E. Bell, Judge.
    Suit by J. S. Clements against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    •Sadler & Cobb, of Gatesville, and Terry, Cavin & Mills and F. J. Wren, all of Ft. Worth, for appellant. John P. Dewald, of Pendleton, for appellee.
   KEY, C. J.

This is a suit for damages alleged to have been caused by the railroad company by improper and rough handling of a shipment of cattle from Ft. Worth to Cop-peras Cove. Verdict and judgment were rendered for the plaintiff, and the defendant has appealed.

The first assignment of error complains of the action oí the trial court in refusing to give a requested instruction directing a verdict for the defendant. The first proposition submitted under that assignment is that when a-shipment of live stock is transported with ordinary care, and with reasonable diligence, if the live stock sustains injuries, it will be attributable solely to the inherent nature or proper vice of the animals, and not chargeable to the carrier. The undisputed proof shows that some of the animals shipped died before the shipment reached its destination, and that others were seriously injured when they were delivered to the consignee at Copperas Cove.

The plaintiff produced one witness, a Mr. Hunnicutt, who purchased the cattle in Et Worth and had them shipped, and he testified that while they were not fat, but thin, they were in reasonably good condition, and, in his opinion, could have made the trip from Ft. Worth to Copperas Cove without injury, if they were properly handled and cared for.

The defendant introduced three witnesses who inspected the cdttle and loaded them on the train at Ft. Worth, who gave testimony to the contrary of that given by Mr. Hunni-cutt, and stated that the cattle were very poor and thin; that some of them fell down while being loaded and had to be helped up; and that the entire lot was not fit for shipment.

Defendant also introduced the testimony of all the trainmen who handled the shipment from Ft. Worth to Copperas Cove, and that each and all testified that the shipment was carefully handled while in their control. If when the cattle were delivered to the defendant, they were in the condition described by Mr. Hunnicutt, they were not in the bad condition described by the defendant’s witnesses, and therefore, 'as the undisputed proof shows that they’ were in a very bad condition and seriously injured when they reached their destination, the jury had the right to conclude that such injuries were caused by improper handling en route. This shows that there was conflict in the testimony, and therefore it would have been improper for the court to. have directed a verdict for the defendant.

Appellant’s other proposition is that, as it was shown by the great preponderance of tlie evidence that the cows when delivered to it were in a weak, thin, and emaciated condition, and that it was guilty of no negligence in handling the shipment, it was entitled to. an instructed verdict. That proposition is contrary to the law as established by decisions of our Supreme Court.

It has often been held that wherever there is conflict in the testimony, it is the duty of the trial court to • submit the case to the jury. This is the law as established, by the decisions of our Supreme Court, although the same court has frequently said that, in considering a motion for new trial, it is the duty of a trial judge to set aside the verdict when, in his opinion, 'it is contrary to the great preponderance of the testimony. But that rule does not affect the primary right to have the case submitted to a jury. The same court, and other appellate courts, have held (hat a different rule prevails when an appellate court is asked to set aside a verdict where the record shows conflicting testimony; and it is generally held that such relief will not be granted, unless it appears, that the verdict is so contrary to the overwhelming weight of the testimony as to indicate that the jury was influenced by some improper motive, or that gross injustice has. been done. We are not called upon to determine whether or not this case belongs in that class, because no assignment of error has been presented complaining of the action of the trial court in refusing to set the verdict aside.

Some other questions are presented in appellant’s brief, and have received due consideration at the hands of this court, with the result that all of them are decided against appellant.

No reversible error has been assigned, and. the judgment is affirmed.

Affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. MORROWk J-

text:
    Ex parte ALDERETE.
    (No. 4978.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.
    On Motion for Rehearing, May 8, 1918.)
    1. Habeas Corpus <@=44 — Jurisdiction to Issue — Court oe Criminal Appeals — Statute.
    Under Const, art. 5, § 5, and Code Cr. Proe. 1911, arts. 69, 160, 174, 175, 181-183, the Court of Criminal Appeals has jurisdiction to issue writ of habeas corpus in any case where a person is illegally restrained of his liberty, and, under Const, art. 5, § 3, and Rev. St. 1911, art. 1529, the Supreme Court has concurrent jurisdiction where the restraint grows out of a civil case.
    2. Habeas Corpus <@=44 — Court oe Criminal Appeals — Exercise oe Jurisdiction.
    Generally speaking, the Court of Criminal Appeals will not issue original writs of habeas corpus in cases where other courts have jurisdiction to do so.
    3. Habeas Corpus <®=>44^Contempt in Civil Case — Court oe Criminal Appeals.
    In a contempt proceeding growing out of an alleged failure to observe an order in a civil cause, the Court of Criminal Appeals will refuse to grant writ of habeas corpus, relegating the party to his remedy in the Supreme Court.
    4. EIabeas Corpus <@=44 — Restraint in Civil Cause — Decision by Court oe Criminal Appeals.
    Where it is apparent from the record brought to the Court of Criminal Appeals that the order or process under which relator seeking habeas corpus was held was in a civil cause, so that his application for writ should have been presented to the Supreme Court, the writ having been issued under the circumstances that, when the application was presented, it did not contain a copy of the order or process under which relator was held, but stated that it could not be obtained, in compliance with Code Cr. Proe. 1911, art. 174, it is the duty of the Court of Criminal Appeals to decide the question.
    5. Intoxicating Liquors <@=>278 — Sale oe Liquors — Avoidance by Removal.
    Injunction against an incorporated club and its officer from using the premises of the club, or any part, for selling spirituous, vinous, or malt liquors, etc., related to the business or occupation in which the club and its officer were engaged and could not be avoided by removal to another town in the same county.
    6. Contempt <@=64 — Order and Commitment.
    To hold one adjudged in contempt in custody, a valid and entered order or judgment, and a commitment issued thereon, are necessary, and in the absence of a commitment any restraint is illegal.
    7. Habeas Corpus <@=41 — Correction of Verbal Order — Jurisdiction.
    Where one is held in contempt proceedings on a verbal order, and obtains writ of habeas corpus from the Court of Criminal Appeals, the court making the order is without power to correct it, or to oust the jurisdiction of the Court of Criminal Appeals, which attaches by issuance of the writ, by causing a commitment to be issued.
    On Motion for Rehearing.
    8. Habeas Corpus <@=26 — Holding under Verbal Order.
    Where, when application for habeas corpus was filed, with the Court of Criminal Appeals, the sheriff had no commitment for relator in his hands, and was holding him under a verbal order of the trial judge, writ of habeas corpus should have been granted.
    9. Habeas Corpus <@=69 — Order Releasing on Bail — Entry .of Judgment on Minutes.
    The order of the Court of Criminal Appeals releasing relator on bail pending a decision whether writ of habeas corpus would be issued on his application or not did not suspend the trial court’s power to have written on its minutes the judgment it had rendered.
    10. Habeas Corpus <@=117 (2) — Order Discharging from Custody — impediment to Enforcement of Judgment.
    Where the Court of Criminal Appeals determined that the facts authorized rendition of the judgment of the district court under which relator was held, it having been entered in the record, and relator’s discharge being on the ground that when the order of the Court of Criminal Appeals was made there was no judgment entered or process issued authorizing his detention, its order discharging him from custody is no impediment to the subsequent enforcement of the judgment of the district court by proper process.
    Original application for writ of habeas corpus on behalf of Ike Alderete.
    Application granted, and relator ordered discharged.
    Hudspeth & Harper and M. W. Stanton, all of El Paso, and C. C. McDonald, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an original application for writ of habeas corpus seeking relief against judgment of the district court in El Paso county declaring relator in contempt of court.

The state suggests the want of jurisdiction of this court, citing Ex parte Zuccaro, 72 Tex. Cr. R. 214, 162 S. W. 844, and Ex parte Mussett, 72 Tex. Cr. R. 487, 162 S. W. 846. One of these cases, Ex parte Zuccaro, supra, indicates that the majority of the court rendering the opinion were of opinion that by reason of article 1529 of the Revised Civil Statutes this court would be without jurisdiction to grant a writ of habeas corpus to one restrained of his liberty by virtue of an order entered in a civil case. The Mussett Case follows the same line of reasoning, stating:

“To our mind, taking into consideration our Constitution and the amendment thereto, the act of the Legislature in pursuance of this amendment to the Constitution quoted above, it was the clear intent and purpose that in this character of case the application for a writ of habeas corpus should be addressed to the Supreme Court, and not to this court.”

In the State ex rel. McNamara v. Clark, 79 Tex. Cr. R. 559, 187 S. W. 760, the majority of the court rendering the opinion held it is vested with the jurisdiction to give relief against an injunction ordered issued by a district court. This decision, it is claimed in the dissenting opinion, is in conflict with the cases of Zuccaro and Mussett, supra.

Whatever may be the scope or effect of the decisions mentioned, the writer is of the opinion that the Court of Criminal Appeals has jurisdiction to issue a writ of habeas corpus in any case where a person is illegally restrained of his' liberty. See articles 69 and 160, C. C. P. Article 174 prescribes the requisites of a petition for a writ of habeas corpus, and article 175 is as follows:

“The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition itself, or Some documents annexed to it, that the party is entitled to no relief whatever.”

See articles 181 to 183, C. C. P., also- •

The Constitution contains the following:

“The Court of Criminal Appeals and the judg-, es thereof shall have the power to'issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.” Article 5, § 5.

The Supreme Court also has power to issue writs of habeas corpus in certain cases. Article 5, §3, of the Constitution provides:

“The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law.”

And Acts 1905, p. 20 (Rev. Civil Statutes 1911, art. 1529), provides, in substance, that the Supreme Court or any justice thereof shall have power to issue writs of habeas corpus where a person is restrained of his liberty by virtue of any order of a court or judge issued in a civil cause- The effect of these constitutional and statutory provisions, as the writer understands them, is that the Court of Criminal. Appeals is vested with authority to issue writs of habeas corpus in all cases where a person is illegally restrained of his liberty, and that the act of the Legislature vesting in the Supreme Court authority to issue such writs where restraint grows out of a civil case gives the Supreme Court concurrent jurisdiction with the Court of Criminal Appeals in such cases. This, we understand, is the construction placed upon the statute by the Supreme Court; at least such is the intimation in Ex parte Allison, 99 Tex. 464, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. It is also in harmony with the conclusion reached by this court in Ex parte Allison, 48 Tex. Cr. R. 635, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684.

It does not follow that the Court of Criminal Appeals will exercise its jurisdiction by granting a writ in every application for writ of habeas corpus. The contrary policy has been declared and made necessary; and, generally speaking, it will not issue original writs of habeas corpus .in eases where other courts have jurisdiction to do so. Ex parte McKay, 199 S. W. 637, and cases cited. This is because primarily the functions of the Court of Criminal Appeals are appellate, and it is much more expedient that habeas corpus questions be determined by the district courts where they have jurisdiction subject to review on appeal to this court. Upon the same principle this court will refrain from issuing writs of habeas corpus against restraint under orders in a civil case because it is more orderly and expedient that the Supreme Court should pass upon such habeas corpus proceedings as are placed within its jurisdiction by the statute mentioned above. So in a contempt proceeding where it appears that it grows out of an alleged failure to observe an order in «a civil cause this court will refuse to grant the writ relegating the party to his remedy in the Supreme Court.

This procedure would have been followed in the instant case except for the fact that when the application was presented it did not contain a copy of the order or process under which the relator was held, but stated that it could not be obtained. This was in accord with article 174, C. C. P., which prescribes the requisites of a petition for a writ of habeas corpus. Since the record has been brought here it is apparent that it does grow out of an order in a civil cause, and it ought to have been presented to the Supreme Court, but the writ having been issued under the circumstances mentioned it appears to be the duty of this court to decide the question raised.

The. facts show that the relator is an officer in a corporation known as La Union Fraternal, domiciled in El Paso county, Tex.; that it formerly operated at the town of Xsleta, in that county, but at the time the transaction involved in this proceeding occurred it was operating in the. city of El Paso in the same county. On the 20th day of July, 1916, a suit was filed against it and against relator, who was one of its officers, which suit was prosecuted to judgment, from which we take the following excerpt:

“It is therefore ordered, adjudged, and decreed that the writ of injunction as prayed for in plaintiff’s original petition filed herein the 20th day of July, A. D. 1916, be granted, and that the defendant, La Union Fraternal a corporation, and its officers, agents, servants, and employés, and Ike Alderete, be and are hereby perpetually enjoined and restrained from using the premises of said club, or any part thereof, for the purpose of selling spirituous, vinous, and malt liquors, or either of them, and from keeping for sale therein spirituous, vinous, or malt liquors, and from using the stock, means, assets, and property of the said La Union Fraternal, a corporation, for purchasing, selling, and dispensing intoxicating liquors to its members and other persons.”

Appeal was prosecuted from this judgment to the Court of Civil Appeals, and the matter has been finally determined against relator, and the order disposing of it is not one from which a writ of error to the Supreme Court would lie-

The relator was cited and appeared in a contempt proceeding in the court which rendered the judgment mentioned and the hearing, and order was issued adjudging him in contempt of said court, from which order we copy as follows:

“Finding that it having been proven that said Ike Alderete disobeyed the said injunction and final judgment on March 1, 1918, in this, that he sold and kept for sale intoxicating liquors at the premises of La Union Fraternal, a corporation, in El Paso, El Paso county, Tex., and that he on said date used the 'stock, means, and assets of said corporation for the purpose of selling and keeping for sale and dispensing intoxicating liquors to the members of said corporation, and further that said Ike Alderete was an officer, to wit, treasurer of said corporation on said date.”

The order further fixed the punishment of relator at a fine of $100 and imprisonment in the county jail for three days.

The agreed statement of facts sustains the finding. It is obvious that the injunction related to. the business or occupation in which the relator and the corporation of which he was an officer was engaged, and that its effect was' not to be avoided by removal to another town in the same county any more than transferring its business to another house in the same town would have done so.

To hold one adjudged in contempt in custody a valid and entered order or judgment and a commitment issued thereon are necessary. The record, discloses that on March 9th the court trying relator for contempt stated that an order adjudging him guilty and fixing his punishment would be made, and that thereafter, on the same day, after the sheriff had taken charge of relator, this order was entered on the docket, and was subsequently, on the 11th of March, merged in the judgment and spread upon the minutes. This judgment has • been quoted from, and hears daté of March 9th. This writ of habeas corpus was applied for and issued on March 20th. The sheriff in his return states that the relator was taken into custody by virtue of an oral order of the district judge of the Thirty-Fourth judicial district made in a proceeding on the docket of that court March 9, 1916, adjudging relator in contempt; that no commitment was delivered to him until the 19th day of March, at which time there was delivered to him the commitment which was attached to his return and which is formal and appears based on the judgment' entered in the minutes of the court, above referred to. In the absence of a commitment relator was illegally restrained. Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; Goodfellow v. State, 53 Tex. Cr. R. 473, 110 S. W. 755; Ex parte Duncan, 42 Tex. Cr. R. 672, 62 S. W. 758; Ex parte West, 60 Tex. Cr. R. 497, 132 S. W. 339; Ex parte Davis, 48 Tex. Cr. R. 646, 89 S. W. 978, 122 Am. St. Rep. 775; Ex parte Andrews, 51 Tex. Cr. R. 83, 100 S. W. 376; Ex parte Kilgore, 3 Tex. App. 247; Ex parte Coffee, 72 Tex. Cr. R. 209, 161 S. W. 975; Ex parte Dena, 63 Tex. Cr. R. 379, 140 S. W. 346; Ex parte Ogden, 63 Tex. Cr. R. 380, 140 S. W. 345.

Where 'one is held in contempt proceedings on a verbal order and obtains from this court a writ of habeas corpus, the court making the order is without power to correct it or to oust the jurisdiction of this court which attaches by issuance of the writ, by causing a commitment to be issued. This is held in Kearby v. State, supra, and other cases, and is based upon article 211, C. C. P.

The facts of this case, however, are not such. At the time the writ of habeas corpus was issued by this court the sheriff had in his possession the commitment issued on the previous day, which commitment he attaches to his return in compliance with article 190, C. O. P. We understand the cases cited above, notably the Case of Kearby, to justify the inference that the right of the court making the order to amend the process' issued thereunder exists prior to the time that the writ of habeas corpus was issued. This view appears to be supported by the statute (article 205, C. C. P.). In all events it occurs to us that, inasmuch as the return of the sheriff of El Paso county, to whom the writ of habe-as corpus was issued, shows that at the time the writ was issued he was holding relator under a commitment previously issued, supported by a valid judgment, we would not be authorized to discharge the relator on account of the fact that before the commitment was issued the relator had been by the sheriff illegally restrained of his liberty. It would seem that the question for us to decide is whether at the time the writ applied for was issued there was any illegal restraint.

Acting upon this view, we must order the relator remanded.

PRENDERGAST; J., absent.

On Motion for Rehearing.

MORROWk J-

No writ of habeas corpus was ever issued herein. An application for such a writ was filed, and the order made by the presiding judge releasing relator on bail pending a decision by the court whether a writ would be issued or not. The writ was refused upon the mistaken ground that the order for discharge on bail was made after the commitment was in the hands of the sheriff. This fact was gathered from the pencil memorandum granting the'order written on the application. The order was in fact made at a time when the sheriff had no commitment for the relator in his hands, and was holding him under a verbal order of the trial judge, for which reason we were in error in refusing the writ, which error we now correct by setting aside the order refusing it and granting the writ of habeas corpus.

The judgment was rendered on March 9th, and a memorandum made of it. It purports, as written, to have been rendered March 9th, though it appears aliunde that it was not physically transcribed on the minutes until the 11th of March. We do not understand that there was any question of the entry of the judgment nunc pro tunc involved. We are of opinion that the order made by this court did not suspend the power of the trial court to have written on its minutes the judgment it had rendered. The order was an obstacle to any interference with the liberty of the relator by virtue of the judgment, or any I>rocess issued thereunder pending the disposition of the matter in this court, and if this ■court on the hearing had determined that the facts did not authorize the rendition of the judgment, the relator could not be held upon any subsequent process issued thereon. This court having determined that the facts did authorize the rendition of the judgment, and it having been entered in the record, and the discharge of relator being upon the ground that at the time the order of this court was made there was no judgment entered or process issued authorizing his detention, its pres■ent order discharging him is no impediment to the subsequent enforcement of the judgment of the district court by proper process.

The application for writ of habeas corpus is granted, and the relator is ordered discharged.
      <g=5Por otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    Ex parte LITTLE.
    (No. 5032.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    Habeas Corpus <@=44 — Jurisdiction—Court of Criminad Appears.
    While under Const, art. 5, § 5, the Court of ■Criminal Appeals has jurisdiction to issue a writ of habeas corpus, where a person is illegally restrained, relator, who was adjudged guilty <of contempt in a controversy over the custody ■of a dependent child, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2184-2190, a civil proceeding, will be relegated to pursuit of his remedy in courts of civil jurisdiction, in view ■of Const, art. 5, § 3, and Rev. St. 1911, art. 1529, giving Supreme Court jurisdiction of habeas corpus proceedings growing out of a civil ■case.
    Application by William Little for a writ of habeas corpus.
    Denied.
    Chambers & Watson, of San Antonio, for ■appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator applied for a writ •of habeas corpus, seeking discharge from an order of the county judge of Bexar county adjudging him guilty of contempt. The order permitting the application to be filed was on the theory that the judgment was entered in .a proceeding under the juvenile delinquency act. Vernon's Texas C. C. P. p. 985, tit. 17. This act has been construed criminal in its nature. Ex parte McLoud, 200 S. W. 394; Ex parte Pruitt, 200 S. W. 392; Miller v. State, 200 S. W. 389; McLaren v. State, 199 S. W. 811. Since the application has been supplemented by the facts it appears that the proceeding grew out of a controversy over the custody of a dependent or neglected child. See Vernon’s Civil Statutes, vol. 2, tit. 38, c. 1, arts. 2184 to 2190, inclusive.

Proceedings under this statute we regard as civil in their nature. Instances are numerous in which this has been declared. See cases cited in Miller v. State, 200 S. W. 391, motion for rehearing; Ex parte Singleton, 72 Tex. Cr. R. 123, 161 S. W. 123; Ex parte Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Ex parte Reeves, 100 Tex. 617, 103 S. W. 478. The Supreme Court is given jurisdiction of habeas corpus proceedings growing out of a civil cause. See article 5, § 3, of the Constitution, and Rev. Civ. St. 1911, art. 1529. While this court also has jurisdiction to issue a writ of habeas corpus, when one is illegally restrained of his liberty (art. 5, § 5, of the Constitution), we will not exercise It as against an order made in a civil case, .but will relegate the applicant to the pursuit of his remedy in the courts of civil jurisdiction. Ex parte Alderete, 203 S. W. 763, not yet officially reported; Ex parte Mussett, 72 Tex. Cr. R. 487, 162 S. W. 846.

We therefore decline to issue the writ of habeas corpus and remand the relator to the respondent, John W. Tobin, sheriff of Bexar county, without in any way prejudicing relator’s privilege of pursuing his remedy by habeas corpus or otherwise in the civil courts having jurisdiction.


author: DAVIDSON, P. J.

text:
    ELLIOTT v. STATE.
    (No. 5021.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Criminal Law <@=530 — Confessions — Witnesses.
    Confession to which defendant made his mark and which was signed by a competent witness is not inadmissible because also signed by an incompetent witness.
    2. Criminal Law <@=530 — Confessions.
    Where the fruits of a crime may alone have been discovered by reason of a confession, the confession is admissible whether or not in writing or signed.
    3. Criminal Law <@=465 — Evidence—Opinion.
    Witness, after stating that he found a panel of the door broken out or removed, could state that one could reach through the space and remove the latch so as to open the door.
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge.
    Willie Elliott was convicted of burglary, and appeals.
    Affirmed.
    S. E. Dawson and E. L. Routh, both of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary and allotted two years in the penitentiary.

The state’s evidence is to the effect that the owner of the burglarized house went away, and that appellant went into it and took therefrom a pistol. The state’s theory is that appellant went to the back door, removed a panel or board so he could and did remove the latch, and thus entered the house. There is evidence that the door was in the-condition indicated. Appellant’s statement was that he did go to the house; that the door was partly open; that he might have “edged” through it, hut did push the door bach far enough to make his entrance; that he searched for a pistol, which he wanted to carry with him to the Trinity river bottom, and found the pistol and took it away. The owner of the house shows there had been other things disturbed in the house; his pants pockets had been turned inside out, and things misplaced generally.

Appellant made a written confession while under arrest, which seems to be in conformity with the statute. The introduction of the confession was resisted on the ground that it was witnessed by a peace officer. It shows that the confession was taken' by the assistant county attorney, Mr. Fears, who signed it as a witness, and that a peace officer did also sign it. The objection is based upon the ground that appellant could not write, but made his mark to the confession, and the peace officer was not a competent witness. It is not contended, however, that the assistant county attorney was incompetent to sign it as a witness. If the peace officer alone had signed it as a witness, it would have been inadmissible under the statute, but, Mr. Fears having signed it also, we are of opinion that, where a competent witness signs and an incompetent witness signs, the ¿confession is not rendered inadmissible by reason of the fact an incompetent witness also signed it. Had the deputy sheriff or peace officer alone signed it, the admission of the confession would have been erroneous. It seems also from the confession and the evidence that by reason of this confession the pistol was found. When the confession was made the officer took the defendant with him to where he said the pistol was, and defendant got the pistol at the point designated. Wherever the fruits of a crime may alone have been discovered by reason of the confession, the confession would be admissible whether it was in writing or not, or whether signed or not.

There is another bill of exceptions reserved to the admission of the testimony of Mr. Fears, assistant county attorney, to the effect that when he went to the house he found a panel of' the door broken out, or removed, and that a party could reach through this space and remove the latch on the inside so as to open the door. The basis of the objection was that his was an opinion, and that he should have stated the facts and let the jury reach the conclusion or form their opinion. We do not regard this as a serious matter, and especially as qualified by the trial judge. If such was the condition of the physical facts, we are of opinion Mr. Fears could so state, and the court in his qualification informed counsel at the time of the objection that if such was the case Mr. Fears’ testimony was admissible. There was nothing further urged, and that closed the incident as shown by the judge’s qualification to the bill. In any event we are of opinion there is no such error in this as requires the court to reverse the judgment if there should even be error.

The judgment will be affirmed.
      iteaVor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    LEWIS v. STATE.
    (No. 5026.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    Criminal Law @=>1090(8) — Appeai^Record — Bill op Exceptions — Statement of Facts.
    In the absence from the record of a statement of facts or bill of exceptions, sufficiency of the evidence to sustain the verdict cannot be reviewed.
    Appeal from District Court, Austin County; M. C. Jeffrey, Judge.
    Owen Lewis was convicted of assault to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment being assessed at 15 years’ confinement in the penitentiary. There is neither a statement of facts in the record nor bill of exceptions. The only question suggested for revision is the want of sufficient evidence to sustain the verdict of the jury. In the absence of the evidence, this question cannot be reviewed.

The judgment will be affirmed.


text:
    MOORE v. STATE.
    (No. 5003.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.
    Rehearing Denied May 22, 1918.)
    1. Criminal Law @=»369 (5) — Evidence—Other Crimes.
    In a prosecution for theft of an automobile, where defendant’s participation in the theft and disposition of the car were squarely in issue, evidence of other auto thefts in which defendant’s accomplice testified defendant participated was inadmissible, not serving to connect defendant with the crime, to prove his identity with it, or his intent, and not constituting any part of the res geste.
    2. Criminal Law @=>510% — Corroboration —Accomplice in Larceny.
    That defendant, charged with theft of an automobile, was in possession of the recently stolen car in connection with his accomplice, was proper testimony to corroborate the accomplice, who was a state’s witness.
    3. Larceny @=>49 — Evidenoe of Other Offenses — Identity.
    In prosecution for larceny of an automobile, other indictments and the verdict of a jury in another case were not intraducibie on the question of defendant’s identity.
    Appeal frogu. District Court, McLennan-County; Richard I. Munroe, Judge.
    George Moore was convicted of theft of an automobile, and be appeals.
    Reversed, and cause remanded.
    See, also, 203 S. W. 51.
    J. A. Kibler and Shurtleff & Cummings, all of Wlaco, and Cbas. D. Black, of Austin, for appellant. Jno. B. McNamara, Co. Atty., and D. G. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.

   DAVIDSON, P. J.

Appellant was convicted of tbe tbeft of an automobile from J. P. Griffis.

. Tbe state’s case was made by an accomplice named Tiller. His testimony substantially is that be and appellant got tbe auto in Waco, and after traveling in different parts of tbe state finally wound up at El Campo, in Wbarton county, and sold it to G. W. Wilson. Tbe testimony of tbe accomplice is positive as to tbe tbeft and tbe sale, and appellant’s presence at tbe time of tbe taking and bis co-operation and participancy in tbe sale at El Campo, and tbe money received from Wlilson. Wilson identified tbe defendant as being at El Campo at tbe time, and coinciding and assisting Tiller with tbe car and its disposition. This, without going into tbe details of tbe case, is tbe- case, in substance, for tbe state. Appellant denied tbe transaction in toto, both as to tbe taking and tbe sale so far as be was concerned, and denied bis presence at any time or any participancy in the entire transaction from beginning to finish.

Tbe court over various objections permitted tbe introduction of evidence of other auto thefts in which Tiller testified that appellant participated. The objections are based upon tbe theory that independent and extraneous matters and offenses are not admissible unless they in some way are necessary to show appellant’s guilt or connect him with this transaction. This is a sound proposition. Many cases can be found collated in Mr. Branch’s Ann. P. C. pp. 98 and 99. Appellant collates in a very able brief a lot of these cases. There seems to be no just theory upon which these extraneous matters were admissible in this case. They in no way serve to connect defendant with this transaction, or prove bis identity with this transaction, or his intent in taking this car, nor did they constitute any part of the res gestae. They were independent offenses committed at different times and under different circumstances. It was a square-put issue under tbe facts of appellant’s participancy in tbe tbeft and the disposition of the property. There was no issue, if be did so, of bis identity, or bis Intent, because if be did be was guilty, and the other cases have no connection with this case, and, not serving any purpose to connect him with it or show bis intent, were inadmissible. He accepted tbe issue, and met it by positive evidence that be bad nothing to do with tbe taking or the disposition of the property. We suppose tbe fact that be was present at tbe sale and participated in the fruits of tbe crime and incidental matters connected with tbe sale, as shown by Wilson’s testimony, was to corroborate the accomplice Tiller. Tiller was not corroborated by any direct fact as to the taking. He himself placed the taking in such manner that no one but be and appellant were present, but shortly afterward be was with Tiller under the state’s theory and assisted in tbe disposition of tbe property. In other words, he was in possession of recently stolen property in connection with Tiller. This was a fact relied upon by tbe state to corroborate Tiller, and was proper testimony, and no objection was urged to its introduction. Appellant’s objections were well taken. They were not introduced for impeachment purposes. There was testimony of other indictments, and tbe verdict of a jury in another case introduced, and the court signs the bill with tbe qualification that these were admitted upon the question of identity. For this purpose they were not introducible. It is useless to discuss this further from what has been said.

The judgment is reversed; and tbe cause remanded.

PRENDERGAST, J., absent.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Pigests and Indexes


author: PRENDERGAST, J.

text:
    KITCHENS v. STATE.
    (No. 4977.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    Rehearing Denied May 29, 1918.)
    1. Criminal Law <S=»1098 — Matters Reviewable — -Record .
    Statement of facts wholly in question and answer form .will be stricken on appeal.
    2. Criminal Law c§c=31097(4) — Matters Reviewable — Reoord.
    Bills to the admission of testimony cannot be considered in the absence of a statement of faTits.
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    Horace Kitchens was convicted of robbery, and he appeals.
    Affirmed.
    S. H. Townsend, of Lufkin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of robbery and assessed the lowest punishment.

The statement of facts is wholly in question and answer form. The state has made a motion to strike it out and not consider it. Under tbe statutes and tbe many and uniform decisions of this court tbe state’s motion must be granted. A great number of cases down to the present time could be cited, but we deem it unnecessary. We here , cite some of them: Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Baird v. State, 51 Tex. Cr. R. 322, 101 S. W. 991; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 543; King v. State; 57 Tex. Cr. R. 363, 123 S. W. 135; Kempner v. State, 57 Tex. Cr. R. 355, 123 S. W. 131; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 524; Hart v. State, 67 Tex. Cr. R. 497, 150 S. W. 188; Criner v. State, 71 Tex. Cr. R. 369, 159 S. W. 1059; Stephens v. State, 77 Tex. Cr. R. 30, 177 S. W. 92.

Appellant made a motion for a continuance, and lie lias some very defective and incomplete bills to the admission of certain testimony. None of these masters can be considered in the absence of a statement of facts, as has all the time been held by this court in a great number of decisions.

Hence the judgment must be affirmed.
      (@=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REESE v. STATE.
    (No. 5024.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    1. Rape @=16(5) — Assault to Commit Rape —Force.
    In prosecution for assault to commit rape on a girl under 15 years of age, force and consent ¿re not material issues.
    2. Rape @=59(20, 21) — Assault to Commit Rape — Aggravated Assault.
    In prosecution for assault to commit rape, evidence held not to call for instruction on aggravated assault.
    3. Rape @=53(2) — Assault to Commit Rape —Evidence.
    Evidence held sufficient to sustain conviction of assault to commit rape on a girl in her eighth year.
    4. Criminal Eaw <§=763, 764(S) — Instructions on Weight oe Evidence.
    A charge, if defendant did “make an assault upon said L. * * * with the intent * * * to ravish * * * her * * * you will find the defendant guilty,”, was not on the weight of the evidence as assuming that defendant made an assault.
    Appeal from «District Court, Austin County; M. C. Jeffrey, Judge.
    Miles Reese was convicted of assault to commit rape upon a girl under 15 years of age, and he appeals.
    Affirmed.
    C. Douglas Duncan'and Johnson, Matthaei & Thompson, all of Bellville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape upon a girl under 15 years of age.

The facts show that she was between 7 and 8 years of age at the time of the occurrence. The little girl was left at home with her baby sister by her mother. Appellant came to the house, laid her on the bed, and undertook to have intercourse with her. Her testimony is to the effect that he pulled down her drawers and placed his privates between her legs and hurt her a little. There was an emission, but not an entrance in the private parts of tbe girl. The girl was impeached by showing that she made statements impairing the truth of her statements before the jury. She denied making the statements, and the appellant contradicted her. The facts show that there were indications of an emission and some blood on her drawers three or four days subsequent to this transaction. However, she said nothing about it until her mother made this discovery. Appellant himself testified and introduced evidence in corroboration showing an alibi. He denied the whole transaction, and said that he was not present, and that the matter did not occur so far as he was concerned. There is evidence also 'that the girl developed gonorrhea four or five days after the alleged transaction. This matter was gone into pretty fully oefore the jury. Appellant was sustained by his mother to the effect that she did the washing of the clothes of defendant, and that she saw no evidence of disease on his clothes. There was a woman living in the house with the mother of prosecutrix named Cochran, who, it was developed, had syphilis. The contention of appellant was that the pus from this woman might have gotten on the child and developed the gonorrhea. A physician testified that this could not be; that if the woman had both syphilis and gonorrhea that it was possible if the pus should have gotten on the girl’s private parts that either disease might have been developed, but the evidence shows that the woman Cochran did not have gonorrhea, but only had syphilis.

This is a case of assault to commit rape on a girl under 15 years of age; therefore the questions- of force and consent were not material issues. The element of force was not charged in the indictment. Nor do we think under the circumstances of this case that the question of aggravated assault was suggested; therefore the court did not err in refusing to charge this phase of the law. Under quite a number of authorities we are of opinion that the judgment should be sustained. See Callison v. State, 37 Tex. Cr. R. 217, 39 S. W. 300, Bourland v. State, 49 Tex. Cr. R. 197, 93 S. W. 115, Herbert v. State, 49 Tex. Cr. R. 72, 90 S. W. 653, Sanders v. State, 54 Tex. Cr. R. 171, 112 S. W. 938, and Branch’s Ann. P. C. pp. 964, 965, for enumerated cases.

The charge given by the court is criticized, especially this clause:

“Now, I charge you that if you believe from the evidence, beyond a reasonable doubt, that the defendant did, as charged in the indictment, on or about the 27th day of October, 1917, in the county of Austin and state of Texas, unlawfully make an assault upon said Laura Starks, who was then and there under fifteen years of age, and was not then and there the wife of the defendant (as the term ‘assault’ is hereinbefore defined), with the intent then and 'there by such assault to ravish and have carnal knowledge of her, the said Laura Starks, with or without her consent, you will find the defendant guilty,” etc.

This is not a charge upon the weight of the evidence. It did not assume that the offense had been committed as a fact and so charge the jury. The jury was instructed that if they should find from the evidence that appellant made such assault, then in connection with the other phases of the charge the jury would be justified in convicting. It did not assume that the assault was committed, but left the jury to determine that fact, and if they should so find they might convict. We understand this to be a correct charge, and not on the weight of the evidence. A similar charge was held to be not subject to such objections in Sanders v. State, supra.

The judgment will be affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BURGEMEISTER v. STATE.
    (No. 4939.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.
    Rehearing Denied May 29, 1918.)
    Criminal Law <S^1023(2) —Appeal—Interlocutory Judgment.
    Since, under Vernon’s Ann. Code Cr. Proc. 1916, arts. 488-043, judgment nisi in forfeiture of bail bond is in the nature of an interlocutory judgment, and does not become final in view of articles 490, 493-498, until citation is entered, dismissal of motion to set aside judgment nisi left such judgment in statu quo, and the order was not appealable, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 960, and Vernon’s Sayles’ Ann. Civ. St, 1914, art. 2078, providing that appeals lie only from final judgments, and accused after forfeiture of bond having* appeared before final judgment and submitted to trial, she or her sureties were entitled to have forfeiture set aside on showing legal grounds therefor under Vernon’s Ann. Code Cr. Proc. 1916, art, 504.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Hedda Burgemeister, having been charged with a felony, gave bond on which forfeiture was taken and judgment nisi entered, and she filed motion to set aside such judgment, which motion was dismissed. From the order dismissing the motion, defendant appeals.
    Appeal dismissed.
    T. M. Campbell, of Palestine, and Chambers & Watson, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was charged with a felony in the district court of the Thirty-Seventh judicial district, executed a bond in the sum of $7,500, upon which a forfeiture was taken and judgment nisi entered on the 1st day of February, 1915. On February 11, 1918, she filed in the court mentioned a motion to set aside the judgment nisi. The court by his own motion dismissed the application to set aside the judgment nisi, the judge declaring that he was without jurisdiction to entertain it. This is complained of, and the appeal is from the entry of this order dismissing the motion.

. The motion contained meritorious allegations, and the record discloses no reason for the alleged absence of jurisdiction, and no other reason for the failure of the court to hear and determine the motion. If he had done so and entered final judgment on the forfeiture, there would have been no question of the right of appeal. Having failed to do so, and merely dismissed the motion, the right of appeal is quite doubtful. Article 960, C. C. P., relating to the procedure on forfeited bail bonds, provides for an appeal upon the rendition of a final judgment. The rule in civil cases obtains; under these, appeals lie from a final judgment. Article 2078, Sayles’ Civil Statutes, and annotations thereon. Ex-. cept in special cases, appeals from interlocutory orders are not entertained. See Sayles’ Civil Statutes, art. 2079, and cases cited. The judgment nisi is in the nature of an interlocutory judgment. See Vernon’s O. C. P., title 7, c. 4. After the judgment nisi is entered, citation is necessary as a predicate for final judgment. Articles 490, 493, 498, O. C. P. It is only when after citation is served and final judgment is entered that execution may issue. Article 581. The dismissal of appellant’s motion left the judgment nisi in statu quo. It appears from the motion that no citation had issued upon it, and that the state was making no effort to make it final. The appellant on her sureties had a right, she having appeared before final judgment and submitted to trial, to have the forfeiture set aside (article 504, C. C. P.) upon showing legal grounds therefor. The dismissal of her motion would seem to leave this right intact. The order made does not adjudicate her rights, does not purport to make the judgment final. Neither she nor her sureties can suffer any injury from execution of the judgment nisi. No order that this court could make would conclude the matter, and we are constrained to believe that we are without jurisdiction to entertain the appeal. See Ryan v. State, 198 S. W. 582.

Appellant suggests that before her appeal bond was executed she had delivered to the sheriff a sum of money equal to the amount of her bond fixed by the court, and that the sureties were obtained by tbe sheriff, and that the status of the case leaves her without remedy in her desire to recover the money so deposited. It is possible that the law would afford some remedy, but we are of opinion that it does not lie in the power of this court to give it on appeal from an order dismissing the motion.

The appeal is dismissed.

PRENDERGAST, J., absent.
      tg^jFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 4879.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, May 29, 1918.)
    1. CRIMINAL Law <&wkey;'510 — Corroboration of Accomplice.
    The testimony of an accomplice must he corroborated.
    2. Criminal Law <&wkey;508(7) — Competency of Accomplice — Plea of Guilty.
    Under Code Or. Proc. 1911, art. 788, in a prosecution for theft of an automobile', the trial court properly overruled defendant’s objection to his accomplice’s competency as a witness, where such accomplice had pleaded guilty to stealing the car, but had not been sentenced.
    3. Criminal Law <&wkey;1169(7) — Appeal — Harmless ■ Error — Evidence.
    In such prosecution, testimony of the accomplice that he first met defendant in the county jail, that he himself was in jail, and that defendant, was there to see about making bond for him, not himself confined in jail, was not error justifying reversal.
    4. Larceny <&wkey;'55 — Theft with Accomplice-Sufficiency of Evidence.
    Evidence held sufficient to show that defendant and his accomplice actually stole the car, and that defendant was a principal with his accomplice, even if the latter himself personally did the stealing.
    5. Criminal Law <&wkey;829(l) — Instructions— Repetition.
    Special charges embraced in the main charge were properly refused.
    On Motion for Rehearing.
    6. Criminal Law <&wkey;511(l) — Corroboration of Accomplice — Sufficiency of Evidence.
    Evidence held sufficient to corroborate defendant’s accomplice under the statute as construed.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Will H. Smith was convicted of theft of an automobile, and he appeals.
    Affirmed.
    John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for the theft of an automobile with the lowest punishment assessed.

Briefly summarized, the testimony shows that Mr. Hildreth, who lived in Blue Ridge, in Collin county, was in Dallas a short time before June 18th to buy an automobile, and there met appellant and so told him. Mr. O’Rourke’s automobile was stolen from Cycle Park in Dallas about 9 or 10 o’clock in the night of June 18th. Later that night appellant, with Will O’Leary, reached Mr. Hil-dreth’s home with Mr. O’Rourke’s car. Appellant knocked on Mr. Hildreth’s door, called him out of the bed, and told him, “I have brought you the car.” Mr. Hildreth asked him “What car?” and he said, “The car I was telling you about down at Burleson’s,” the place they had met in Dallas. Appellant then tried to sell him the car. At this time appellant introduced said O’Leary to Mr. Hildreth under the name of Tom Hawkins. After some further parleying, because it was so late, Mr. Hildreth induced them to wait over until morning. Appellant then backed the car into Mr. Hildreth’s barn, and they remained theye until the next morning. Mr. Hildreth was suspicious of them, and early the next morning sent for the constable, who came to his house and arrested them and took charge of the car. The car was later identified as Mr. O’Rourke’s and delivered to him.

Appellant testified that on the night of June 18th, when he met Hawkins in Dallas, Hawkins already had the car, and wanted him to take Mm to. the man who he said wanted to buy a ear, and he went to Hil-dreth’s with him; that he had no interest in the car, but Hawkins was to pay him $5 for taking him to Hildreth’s. Hildreth said appellant that night told him Hawkins owned the car and had owned it for two months.

Will O’Leary (Tom Hawkins) swore: That appellant met him in Dallas before the night of June 18th, and told Mm “he knew where he could sell one (a car) if we could get it.” “He told me we could sell the car at Blue Ridge.” That on the night of June 18th, about 7:30 or 8 o’clock, they met again, when the subject was again referred to, and appellant told Mm he would go get some money for gasoline, “and we will go get the car.” That he got $2, and they went and got the car and drove it to Blue Ridge, with the result as stated. That he did not tell appellant it was Ms ear — “he knew it was not my car.” That appellant suggested he take the name of Tom Hawkins. He said,- “you can’t go by your name, .because they could identify you.” That they were to split the money, half and half, they were to get for the car.

O’Leary (Hawkins) was an accomplice, and the judge so told the jury in a proper charge, requiring corroboration. He had already pleaded guilty to stealing said car, but had not been sentenced. The court therefore properly overruled appellant’s objection to Ms competency as a witness. Article 788, O. O. P., and eases cited in note 19, p. 701, 2 Yernon’s Crim. Stats.

Appellant has another bill wherein he complains of the testimony of said accomplice witness that he first met appellant in the county jail. This bill is entirely too meager. It does not show the surroundings so as to show error or authorize this court to hold it error. Prom the testimony of this witness on the subject, if we could look to the statement of facts, we gather that the witness himself was in jail, confined on some charged offense, and that appellant was there to see Mm about making bond for him not himself confined in. jail. At any rate it is not shown to be any such error as to justify a reversal.

The evidence was sufficient to show that appellant himself, together with O’Leary actually stole the car. It also raised the question, and- was sufficient to show that he was a principal with O’Leary even if O’Leary himself personally stole the car. Both of these issues were submitted by the court in its charge to the jury, to which charge there was no objection at all. Appellant requested some special charges on the same subject, but the court refused to give them, stating thereon that he did so because they were embraced in his main charge. The court committed no reversible error in refusing to give his special charges.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing and brief thereon appellant contends, “The evidence is not. legally sufficient, * * * aside from that of Willie O’Leary, an accomplice, to warrant a conviction,” and that the testimony of the accomplice was not sufficiently corroborated. The state’s theory and contention was that appellant and O’Leary were principals in the theft of the automobile.

The testimony was somewhat fully stated in the original opinion. But it will now be more particularly stated with reference to appellant’s contentions. The evidence establishes that Mr. O’Rourke’s car, automobile, was stolen from him at Cycle Park in the city of Dallas in the night of June 18th-. On that same night, about 10 or 11 o’clock, appellant and O’Leary together appeared at Mr. Hildreth’s home at Blue Ridge in Collin county, with said car. Blue Ridge is more than 5 miles beyond McKinney from Dallas, perhaps 40 or 50 or more miles from Dallas. Early the next morning the car was recovered from appellant and O'Leary at Mr. Hildreth’s by an officer, who at the time arrested them for the theft of it. The car was identified and restored to Mr. O’Rourke.

Mr. Hildreth swore he met appellant first in Dallas May 30th at Mr. Burleson’s. Appellant himself swore this meeting was three or four days before June 18th, the night the car was stolen. 1-Ie also swore, “We (O’Leary and himself), left Dallas (for Hil-dreth’s) on the night of the 18th of June,” with the car. Hildreth further swore:

“1 saw him (appellant) up about Blue Ridge on the 19th day of June this year. This redheaded boy (O’Leary) was with him. Smith introduced the red-headed boy to me as Tom Hawkins; that was at my house. They came up there in a Ford car. I talked to this defendant at that time. * * * He drove up to my house and called me up out of bed and wanted to sell me a Ford ear. He says, T ■ have brought you the car.’ I didn’t recognize who he was, and I said, ‘What car?’ He said, ‘The car I was telling you about down at Burle-son’s.’ I said, T don’t want any car now; I have a new one;’ and he said, ‘You would buy -a bargain;’ said, ‘You told me you would buy it;’ and I said, ‘You boys come in, and we will fix you a bed, and I will look at the car in the morning.’ He insisted that I take a look at it, and then I went out and seen it wasn’t the car recommended to me, and I asked what the price was. They said they wouldn’t go to bed, but would drive in my lot, and I said, ‘Boys, the barn there is vacant, dover (drive) over there if you want to sleep in the car, and I will look at the car in the morning.’ So I suspicioned something, and sent my boy up town to the constable early the next morning, and he came down there and arrested them. Mr. Smith was driving the car. Up to that time I had never met O’Leary; I had met Smith prior to that time. When I met Smith in Dallas he told me he had a friend that had a car down here that had not been run but a few miles, and he would take .¶:275 for it; that was my business down here, to buy a car, and I said, ‘Where is your friend ?’ ”

On cross-examination lie said he didn’t know who drove the car to his house at Blue Ridge; that appellant told him it was a new Ford, had been run only a few miles, “but I know it was an old car, and had been run lots from the looks of it;” that he didn’t know who had possession of the car, “only Smith (appellant) drove it back to the barn, or backed it in the barn, and then drove out to the pasture the next morning to look at the horse I traded Mm.” After appellant himself alone failed to sell Hil-dreth the car that night apparently as his own, he then and not till then told it was O’Leary’s, and falsely stated O’Leary had owned it two months.

According to the positive testimony of O’Leary, he and appellant together, as principals, stole the car. He was corroborated in° that, immediately after the car was stolen, they were together in possession of it, and together at once took it to Mr. Hildreth’s, where appellant himself tried to sell it to Hildreth, whom, in effect, he swore he had staked out to sell .it to, and told him, “I have brought 3ou the car;” and, even as between him and O’Leary, what he said and did showed that he was in control of the car and not O’Leary, but, in any event, that they were together in possession, as against the true owner and all others.

Appellant in his own testimony flatly contradicted himself, and was flatly contradicted by others. In trying to avoid the fact of his control and possession of the car, he first swore O’Leary got him to go with him- in the car to Hildreth’s, and agreed to pay Mm $5 therefor. Then later he swore:

“I was to get nothing out of the proceeds of this car except $5 that Mr. Hildreth %oas to pay me for my trouble. O’Leary was not to pay me anything at all."

O’Leary swore he and appellant were to divide equally what they got for it. Appellant swore he went with O’Leary to Hil-dreth’s with the car, but did not try to sell it — he only introduced O’Leary to Hildreth as Tom Hawkins. As shown above, by Hil-dreth’s evidence, aiapellant alone at first tried to sell the car to Hildreth, and pressed him to buy that night, and that appellant was in control of the car as to O’Leary. He drove it to Hildreth’s — at least did not deny doing so — and after he failed to induce Hildreth to buy that night he ran or backed it into the barn, and next morning he drove the car into the pasture to see the horse, etc.

O’Leary, the accomplice, swore he did not steal the car alone, but that he and appellant, beiore stealing it, agreed to do so, to sell it to Hildreth, whom appellant had staked out to sell it to, and that they went together, and together did steal it, and together took it to Hildreth’s.

The evidence was amply sufficient to show that appellant and O’Leary were principals in stealing the car, and that O’Leary was sufficiently corroborated under the statute and decisions thereunder.

The motion is overruled.
      <§rs>ITor oilier eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMAS v. STATE.
    (No. 4990.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.
    Rehearing Denied May 29, 1918.)
    Larceny <@=>00 —■ Evidence — Ownership —Sufficiency.
    Evidence held to show that ownership of stolen automobile was as alleged, and was not in the keeper of wagon yard where the automobile was temporarily stored, so as to warrant conviction of larceny.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Cecil Thomas was convicted of theft, and he appeals.
    Affirmed.
    John T. Spann, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

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

The property stolen was an automobile belonging to Jewell Ansley. Ansley drove his car to the fair ground at Dallas, and stored it in Crum’s wagon yard in the fair ground. There was evidence from which the jury were justified in concluding that appellant took the car from the wagon yard without Ansley’s consent, and was afterwards found in possession of it. He explained his possession by claiming that he got it from a man by the name of Savage. Circumstances were sufficient to rebut the truth of this statement.

There are no bills complaining of the charge, or of errors committed on the trial. In motion for new trial appellant challenges the sufficiency of the evidence to show ownership. Ansley testified he left his automobile at Crum’s wagon yard, gave no one consent to remove it, and afterwards found it was gone. He said:

“I turned the car over to the man at the gate. He gave his name as J. S. Crum, and I told him I would be there until late in the afternoon. He said, ‘All right;’ everything was safe.”

B. D. Crum, the son of J. S. Crum, testified that the man whom he thought he identified as. appellant got the car, and that the witness had been at the yard about 10 minutes when the man whom he took to be appellant came and said: “I am going to go and look for him and get this car.” He took the car and went toward town; that he thought appellant was the owner of the car.

It would seem that Crum, the keeper of the wagon yard, was the mere custodian of the car, and that his possession of it was not such as to bring about a variance under the facts between .the proof and allegation of ownership. Thei’e are many cases cited by Mr. Branch in his Ann. P. C. under the proposition. At page 1323 he says:

“Property in the mere custody of a servant or other person is and may be alleged to be in the ossession of the owner, if no special owner ad possession.”

And at page 1324:

“The mere custody of property by an employs or servant of the general or special owner does not operate to take the property out of the possession of such owner.”

Among the authorities cited by the author, and which we think support the theory of tire state that the proof supported the allegation of ownership made in the indictment, are the following: Thomas v. State, 1 Tex. App. 289; Bailey v. State, 18 Tex. App. 426; Emmerson v. State, 33 Tex. App. 89, 25 S. W. 289; Russell v. State, 55 Tex. Cr. R. 330, 116 S. W. 573; Livingston v. State, 38 Tex. Cr. R. 535, 43 S. W. 1008; Garling v. State, 2 Tex. App. 44; Clark v. State, 23 Tex. App. 614, 5 S. W. 178; Odell v. State, 44 Tex. Cr. R. 310, 70 S. W. 964; Staha v. State, 69 Tex. Cr. R. 356, 151 S. W. 543; Crouch v. State, 52 Tex. Cr. R. 463, 107 S. W. 859.

The judgment of the lower court is affirmed.

PRENDERGAST, J„ absent.