author: HENDRICKS, J.

text:
    HANBY et al. v. FIRST NAT. BANK OF HEREFORD et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Escrows (§ 9) — Escrow Agent — Liability.
    The rule which imputes to a person dealing with an agent knowledge of the agent’s authority is based on a condition that such person is attempting to hold the principal liable on account of the agent’s assumption of authority, and does not apply to a voluntary depositary in escrow, who was not bound to know the authority of an agent of certain of the parties making the deposit.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 11; Dee. Dig. § 9.]
    2. Escrows (§ 9) — Delivery oe Securities —Responsibility op Depositor.
    Where certain vendor’s lien notes were delivered to a bank to be delivered to the payees on the joint order of all the parties, the hank was not bound to assume the responsibility of distributing the papers in accordance with the provisions of a prior contract entered into between the parties to which the bank had not assented.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 11; Dec. Dig. § 9.]
    3. Escrows (§ 9) — Condition—Performance-Dismissal op Suit — “Final Determination.”
    Certain vendor’s lien notes, executed in consideration of a transfer of an interest in real property, were deposited in escrow pursuant to a contract that they were to be delivered to the payees in case certain litigation then pending in the federal court should be “finally determined” in favor of one of the parties who was acting therein as the agent for all. Held, that “final determination,” as so used, meant a final determination of the rights of the parties to the action beyond appeal, and hence was not fulfilled by a dismissal of the action by consent of the parties thereto. Citing Words & Phrases, vol. 3, p. 2798.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 11; Dec. Dig. § 9.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by J. D. Hanby and others against the First National Bank of Hereford and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    G. W. Barcus, of Weatherford, and Fred C. Pearce and L. C. Penry, both of Plainview, for appellants. Carl Gilliland and Knight & Slaton, all of Hereford, for appellees.

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

   HENDRICKS, J.

Upon the 11th day of August, 1909, George W. Irwin, Jr., upon the one part, and the members of the commissioners’ court of Collingsworth county, including the county judge, as the other parties, executed an instrument in writing, by the terms of which the county was to sell to Irwin the Collingsworth county school land, constituting four leagues, situated in Lamb county, Tex., and upon conditions and stipulations, all of which are unnecessary to disclose in this opinion. Irwin was attempting to purchase said land for himself and four others, viz., Woods, Hanby, Snyder, and Evants, which interests and obligations of the parties with the status of each with reference to the land was evidenced by another contract between the five individuals, the said Irwin to - receive the final conveyance from said Collingsworth county, and evidently to become a trustee for the others when the land was conveyed. After the contract between Irwin and the commissioners’ court had been executed, one Albert MeRea filed a suit in equity in the federal court for the Northern district of Texas, at Amarillo, for the purpose of canceling the same, making the county and Irwin parties defendant to said suit. During the pendency of that suit, Hanby and Evants (Woods in some manner having been eliminated as an interested party) contracted to sell their interests in the land, and, in the contract with Collingsworth county, to Irwin and Snyder. The consideration of this latter contract was principally evidenced by vendor’s lien notes jointly executed by Snyder and Irwin in different denominations, but severally to Hanby and Evants as payees, in accordance with the following provisions and conditions, appropriate we think, to the discussion of this cause: “(4) It is understood and agreed by the parties hereto that all of the above-described notes are to be deposited in the First National Bank of Hereford, Texas, to be held there in escrow subject to the final termination of the above-mentioned suit It being further understood and agreed that neither of said fire mentioned notes shall be assigned or transferred during the pendency of the above-mentioned suit.

“(6) It is further understood and agreed that should the defendants he unsuccessful in the above-mentioned suit, or should the contract for the purchase of the above-mentioned land, as now existing between the said Geo. W. Irwin, Jr., and Collingsworth county, he canceled, set aside or held to be null and void for any reason, then and in that event, the five notes above described shall be held to have been executed without consideration and shall be null and void.

“(6) If the said Geo. W. Irwin, Jr., and Col-lingsworth county are successful in the above-mentioned suit and the contract for the purchase of said land is held valid and binding, then and in that event upon a final termination of the suit, the above-mentioned five notes shall be delivered by the said bank to the parties of the second part.”

When the above contract was executed by the respective parties, it was not immediately delivered to the Hereford bank, which was called, for in the contract as the agent in escrow, but the delivery of same was postponed until the following morning, when the attorney who represented Snyder and Irwin in the preparation of said contract delivered the same with the notes to J. R. Fuqua, the vice president and active manager of the bank, in a sealed envelope, with an indorsement upon the back of said envelope, and a representation of' a hand, with the fingers pointing to said indorsement, which latter is as follows: “To be held in escrow by the First National Bank of Hereford, and to be delivered by said bank only upon the joint order of George W. Irwin, Jr., J. P. Snyder, J. D. Hanby and W. R. Evants” (who were the parties executing said contract) — said in-dorsement having been made by said attorney. A conflict arises upon two contentions as to the indorsement upon the envelope; the plaintiffs Evants and Hanby, appellants herein, contending that they did not authorize the indorsement upon the envelope, neither was the indorsement upon the same when delivered to the bank; the defendants Irwin and the bank contending for the affirmative of both propositions. The appellants Hanby and Evants sued the bank as a corporation and J. R. Fuqua individually, also Irwin and Snyder, the makers of the notes, claiming that the conditions provided for in the contract with reference to the suit in the federal court instituted by McRae against Irwin and Collingsworth county had been fulfilled, introducing an order of said court showing the dismissal of said cause, based upon the agreement of the attorneys in that cause as part proof of the fulfillment of said conditions, and that the hank and Fuqua had violated the provisions of the contract calling for a delivery of the notes by refusing on demand to deliver the same, and was thereby guilty of conversion; also claiming, in another count in their petition, that the bank, Fuqua, Snyder, and Irwin “entered into a conspiracy and agreement to defraud the plaintiffs out of the said notes and the collection and value of same.” The appellants Hanby and Evants insist in this court that the verdict should have been rendered by the jury, and judgment should have been entered by the court, in their favor, and are the only issues assigned here for the purpose of a reversal.

The trial court submitted the following special issues to the jury :

“Issue No. 1: Was the indorsement on the envelope marked Exhibit A introduced in evidence placed on said envelope before or after the same was delivered to the First National Bank?” The jury, responding to this issue, answered; “Before envelope was delivered to the bank.”

“Issue No. 2: Was the indorsement on the envelope marked Exhibit A introduced in evidence written on by Slaton, with the knowledge or consent of J. P. Snyder, W. R. Evants, J. D. Hanby, and Geo. W. Irwin, Jr.?” The jury answered this issue by stating that the indorsement on the envelope was made with the knowledge and consent of Snyder and Irwin, but not with the consent of Evants and Hanby.

As stated, this cause is briefed and discussed by appellants entirely upon the theory that the verdict and judgment should have been in their favor, and, in this connection, we refer to article 1985 of the Revised Statutes of 1911, which now govern the submission of special issues, gauging the responsibility of the trial court, the obligations of the litigants with reference to such matters, and which, In connection with the succeeding article 1986, impresses and declares the effect of a special verdict upon the issues actually submitted. If the judgment of the court upon any tenable theory, considering the pleadings and evidence, all other issues having been eliminated or waived, can be sustained, appellant’s position is necessarily untenable.

We believe the gravamen of appellants’ contention against the bank and Fuqua is that, the jury having found that the in-dorsement upon the envelope not having been written upon the same with their consent, and the evidence showing that the bank or Fuqua had refused to deliver the notes upon demand, the written contract between them and Irwin and Snyder should be the sole criterion of the responsibilities of Fuqua and the bank. As an agent in escrow, and the conditions in the contract vitalizing the notes having happened, the duty of Fuqua was imperative to deliver the notes, and, if not delivered, the bank or Fuqua, one or both were guilty of conversion.

Appellants in this court are bound by the verdict of the jury that the indorsement was upon the envelope when handed to Fuqua. Fuqua and Slaton testified tliat tlie latter’s instructions to tlie former were those written on the outside of the sealed envelope; hence, when the envelope was delivered by Slaton and Irwin to Fuqua, what was the character of the contract actually made with Fuqua measuring his responsibility as a depositary when the envelope was delivered? The appellants, it is true, allege in their petition that the bank and Fuqua accepted the deposit and the notes, “fully understanding at the time of accepting said notes * * * that the same were to be delivered to these plaintiffs at the termination of the suit in the United States court at Amarillo,” but the appellant does not assign error upon any issue of actual knowledge by Fuqua of the terms of the written contract at- that time, and, when we inspect the record upon such a proposition, we find it not proven and view the testimony as tending to prove, if not actually proving conclusively, a contrary fact. It is true, we are not able to say that the jury expressly found that the contract between Slaton and the bank was in accordance with the directions and memorandum and upon the outside of the envelope, though the finding of the jury under the law was equivalent to such a result. A submission to the jury by the court for a finding by the latter of the real contract between Slaton and the bank was not made nor was it specially requested by appellant, but the evidence is practically undisputed that such'was the contract upon which Fuqua received the papers, and the law now is, “upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court, in such manner as to support the judgment; provided, there be evidence to ¡Sustain such a finding.” Article 1985,-B.. S. 1911, supra.

Appellants say: “The defendants plead specially (meaning Fuqua and the hank) thát the papers were delivered by Slaton in pursuance of an express contract. * ⅜ * The jury finds that such contract was not made.” The jury does not find that the contract between Slaton and the hank was made in accordance with the indorsement upon the envelope, but found that the indorsement was upon the envelope when delivered to the bank by Slaton; also finding that the appellants did not consent to the same. The appellants further say that “the effect of the verdict is that the parties did not give Sla-ton any instructions to be communicated to the bank,” and further argue upon such a premise that “this suggests the inquiry as to the effect of his having given such instructions as those disclosed by the evidence,” and suggests the rule for the purpose, we presume, of destroying the contract which Fuqua made with Slaton, that “one dealing with an agent is bound to a knowledge of the agent’s authority,” a general rule un-disputable when applicable. The duties of an escrow agent are ordinarily gratuitous; he becomes bound and is constituted the agent of all parties by virtue of the assumption of the obligations when he accepts the escrow. The rule of law which imputes to a third party, when dealing with an agent, a knowledge of authority is ordinarily-based upon a condition where the third party is attempting to hold the principal liable on account of the assumption of power by said agent — the third party deriving some gain or some consideration from the principal on account of the agent’s acts if he can hold the principal liablq. The reason of the rule, we think, refutes "the applicability of same to the status of case presented here. A. delivers certain papers to B. with a memorandum of directions, which the latter accepts as the measure of his duty to O. and D., and one of them, C., denies the authority of the agent to make such a memorandum, and further asserts that B., the recipient of the papers, is bound by the agent’s actual authority, because the law imposes upon him a contract which B. only was authorized to make, though a different contract was actually made; the depositary not inquiring, and, on account of the failure to do so, the law imposes a constructive contract upon him, although actually having made another. The rule is not so extensive, even in cases of ordinary agency. The law may protect the principal for lack of authority, but it will not substitute a contract which the principal asserts the agent should have made, and hence hold the third party liable upon one which the agent was authorized to make, but never actually made.

Appellants further say that Fuqua and the bank knew that the condition was fulfilled in the executed contract with reference to the Collingsworth county land, and knew the lack of Slaton’s authority at a time when Evants and Hanby demanded the notes, claiming the same were ready for delivery. At this point in the transactions between these parties, it seems that Irwin and Snyder directed Fuqua to hold the notes, and Fuqua, when his attention was called to the provision in the written contract with reference to the delivery of the notes in conformity with certain provisions, asserted that he construed the contract differently. It seems that the matter of his instructions upon the back of the envelope' evidenced by the indorsement were not discussed between them when the refusal was made by Fuqua. The jury having found that they were upon the envelope when delivered by Slaton to Fuqua, there is nothing in this evidence which imputed to Fuqua at this time and bound him thereby that the provisions of the written contract were the only provisions which he had a right to consider at that time with reference to his obligation to- deliver — it was not mentioned that they were the only provisions of the contract which he should consider as a designation of his duties.

Appellants further say: “It must be borne in mind that the plaintiffs’ cause of action is one arising out of an executed contract. * ⅞ ⅞ By ⅛ contract the parties were firmly, bound, and rights vested immediately upon the happening of the specified event.” We presume the appellants mean the provisions of the contract with reference to the deposit which was executed by the parties, and not the agreement made between Slaton and Fuqua; the further logic of this contention being that, if Evagits and Hanby did not give Slaton authority to make the contract he made, the case of Robbins v. Ma-gee, 76 Ind. 381, is applicable, and that no force should be given to the directions by Slaton to Fuqua, and the other contract controls.

In the Robbins-Magee Case a composition agreement was made by a debtor who executed a deed to certain real estate for the benefit of certain creditors, and was deposited with one Scoby, and which Scoby was to deliver to the trustees when certain creditors signed the composition agreement. After this agreement was made, the grantor in the deed, in delivering the papers , to Scoby, instructed him not to deliver the deed to the trustees until other creditors, not mentioned in the composition agreement, should also sign a release. Scoby delivered the deed to' the trustees, who were to effectuate the composition agreement, disregarding the secret instructions ; the written conditions in the composition agreement having been fulfilled by the signature of the creditors named. The court in that instance, as indicated by the instructions of the trial judge, held that the deed, when delivered by Scoby to the trustees, “took effect as a conveyance, although secret instructions may have been given to Scoby to hold the deed until other conditions, never suggested to the creditors or trustees by the plaintiffs or Scoby, should be performed.” The Supreme Court of Indiana said: “Secret instructions will not affect third persons who rely upon the open conduct and visible acts of a party. * * * If the written instrument correctly expressed the contract of the parties, appellants could not render its terms ineffective by oral instructions privately given his attorney and agent; for such the evidence shows Scoby to have been.” Plaintiffs in that cause could not question the delivery of the conveyance by Scoby to the trustees when made by the latter in accordance with the agreement actually made and fully known by the agent in escrow to have been made; nor could they destroy such an agreement by saying that Scoby should have followed what the court designates as secret instructions and known to Scoby as secret instructions, and which he evidently knew the other parties had never agreed to. When analyzed, we think clearly .that.case has no application to the cause presented here.

The Supreme Court of Michigan, in the ease of Culy v. Upham, 135 Mich. 131, 97 N. W. 405, 106 Am. St. Rep. 388, cited by appellant, held that “a verbal direction by a grantor that his deed, which he deposits with a third person, shall be delivered upon his death, if it amounts to a modification of the written conditions of the deed, is ineffectual under the statute of frauds.”

The case of Pacific National Bank v. San Francisco Bridge Co., 23 Wash. 425, 63 Pac. 207, holds that on the evidence of any oral statements or instructions given by the grantor to the depositary at the time the deed was deposited was inadmissible to contradict the written agreement as to the terms and conditions attached to the escrow.

The Supreme Court of Vermont, in the case of Wilkins v. Summerville, 80 Vt. 48, 66 Atl. 893, 11 L. R. A. (N. S.) 1183, 130 Am. St. Rep. 906, decides, however, that “no force is given to a deed deposited in escrow which it would not otherwise have by the effect that the vendor imposes conditions as to the right of withdrawal which violates the terms of his contract as to the deposit of the deed.” The Supreme Court of New York, in the ease of Stanton v. Miller, 58 N. Y. 202, announced also that a deposit with a third person may be wholly in writing or wholly in parole, or partly in both, and that the rule that an instrument between the parties containing an agreement in this respect concludes the entire agreement does not apply.

The higher Court of Chancery of New Jersey, in the case of Fred v. Fred, 50 Atl. 776, followed the New York rule in the following language: “The terms of a deposit in escrow may be in writing or in parole, or partly in writing and partly in parole; and the rule that a contract made in writing inter partes must be deemed to contain the entire agreement does not apply. Stanton v. Miller (1874) 58 N. Y. 203.” Continuing, that court said: “The receipt signed by Leucht, the depositary, by which he declared that he was to deliver the notes to complainant upon the written consent of Kaliseh and Newman, was not intended to express the entire contract between the parties as to the terms and conditions upon which complainant was entitled to the notes, but was intended to relieve the depositary from the responsibility of deciding whether the terms and conditions had been performed. So far as he was concerned, the decision upon this point was to be the joint decision of the two attorneys.”

The Court of Civil Appeals of the Second District, in the case of Peters v. Strauss, 132 S. W. 956, concludes, following Devlin on Deeds, vol. 1, § 318, that where a deed is delivered to another party, with instructions not to deliver to a third party, except upon his (the depositor’s) order or request, the instrument was not placed in escrow, because it is deemed in law to be still in the grantor’s possession; and the Supreme Court of California, in the case of Miller v. Sears, 91 Cal. 282, 27 Pac. 589, 25 Am. St Rep. 176, concludes that a deed cannot be regarded as an escrow if the title of the property remains to be settled to the satisfaction of the contracting parties; and the Supreme Court of Wisconsin, in the ease of Lehigh Coal & Iron Co. v. West Superior Iron & Steel Co., 91 Wis. 221, 225, 64 N. W. 746, 748, declares that, “to make a good delivery in escrow, the maker must part with the possession, and divest himself of all power and dominion over them (meaning certain drafts); otherwise there can be no escrow.”

The Court of Chancery of New York, in the case of James & Blake v. Yanderheyden, 1 Paige, 385, held that, “where a bond and mortgage and deed were delivered to a third person to be kept by him during the .pleasure of the parties, and subject to their further order, * * * that the papers were not escrows, and that the third person was a mere depositary.”

We are not engaged in reconciling these decisions, some of which are cited by the respective litigants as affecting the disposition of this cause, for the reason that we are convinced from the evidence in the cause, concluded by the verdict of the jury and the judgment of the court, that Fuqua and Han-by and Evants never made a contract by virtue of which Fuqua or the bank was to become responsible for the delivery of the notes, in accordance with the provisions in the written instrument executed by the four parties named; their minds never met upon a basis of the measurement of duty and the creation of rights suggested and by the written contract. While we are not adopting the principle in toto advanced in the cause of Fred v. Fred, decided by the New Jersey court, however, there is a suggestion in the quotation in a sense applicable to the condition here. The court there concludes that the receipt given by Leueht, the depositary, was intended to relieve him “from the responsibility deciding whether the terms and conditions had been performed. So far as he was concerned, the decision upon this point was to be the joint decision of the two attorneys.” So far as Fuqua was concerned, although Evants and Hanby may not have agreed to it, the decision upon the question of the delivery of these papers was to be the joint decision of all the parties named upon the back of the envelope. If the presentation of the responsibility derived from the written contract had been presented to Fuqua when the envelope was delivered, it certainly would have been the exercise of wisdom on his part to have rejected such an escrow, and he may have done so. The Supreme Court of Louisiana, in the case of Lafarge v. Morgan et ah, 11 Mart. (O. S.) 468, where a deposit was made an'd “notes were to be held until the mortgages on said plantation are -raised, ‘and when said mortgages are raised, the notes to be restored,’ ” in discussing the same, said: “Who was to be the judge, or to decide when the mortgage had been raised, according to this agreement made by J. Lafarge with S. Packwood, for his security against the in-cumbrances which were known to exist at the time of purchase? Assuredly the deposi-taries, the defendants, never intended to take such responsibility on themselves.”

We are inclined to think that the law will not and should not impose upon Fuqua and the bank the responsibility with reference to the distribution of papers upon the provisions of a contract it is not shown that he assented to, and declare him a trustee by compulsion for that purpose, based on the circumstances surrounding the parties in this cause.

With reference to the right of recovery by the appellants against Snyder and Irwin, the assignments in reality narrow the issue, we are inclined to think, challenging the action of the court in failing to give a peremptory instruction, or in entering a judgment, in their favor. However, we will treat it, as we treated the other discussion, as a complaint addressed to the action of the court in permitting the verdict and rendering the judgment, which were entered, though, in a sense, they are somewhat distinct matters.

Appellants, in their petition, with reference to the contract pleaded by them as a predicate of recovery against Snyder and Irwin, with reference to the meaning of said agreement, say that: “It was contemplated by said parties at the time of making same that said notes were to be returned and delivered to plaintiffs under the terms and conditions of said written contract, * ⅜ * when the McRae suit should terminate without a cancellation of said contract with Collingsworth county.” They further plead that “the said suit in the United States Circuit court at Amarillo * ⅜ * was finally settled and disposed of by dismissal and without cancellation of said contract, and the said George W. Irwin, Jr., was successful in said suit as contemplated by the parties to said agreement, and the said contract for the purchase of said land did become valid and binding and in full force and effect.”

Mr. Hanby, one of the appellants, testified that: “The only trade he and Evants and Irwin and Snyder made as to the terms on which the notes were to be placed in bank was contained in said written contract. The only thing discussed between us as to when the notes were to be delivered was the suit that had been filed against Irwin and Collingsworth county by McRae in federal court at Amarillo. When we purchased the land, in August, from Collings-worth county, McRae was there and claimed to have made a better bid than he did and that he was entitled to the land, ⅜ * * and we did not know but what that it (the contract with Collingsworth county) would be canceled and set aside by said suit (añd) that was the only matter discussed by us, and that was the only thing the holding of the notes was for, and it was our agreement that, when that suit was settled, if Irwin kept the land that we Were to get those notes.”

Mr. Evants testified:- “ * * * The day said contract was executed * * * with the notes, that he and Hanby and Irwin and Snyder discussed the matter and agreed on the terms of the sale and purchase of the land, and at that time Albert McRae had filed suit * * * against Collings-worth county and George P. Irwin, Jr., to cancel the contract, * * * and 'it was the understanding and agreement that, if McRae should cancel the said contract, then the notes would not be delivered, but, if the contract was not canceled by said suit, then the notes should be delivered so soon as the suit was settled, * * * that there was no other contingency discussed between them at the time.”

Of course, we note the testimony of a demand by Hanby from Fuqua of the notes, and his contention at that time that the dismissal of the suit in the federal court was a fulfillment of the terms of the contract vitalizing the notes and authorizing their delivery. However, we think we are bound by an interpretation of the contract according to the effect of same upon the face of the same, and that the testimony of the appellants, quoted by us as to the mean-' ing of the contract, is not in reality in the face of its textual meaning, interpreting the three provisions reproduced in another part of this opinion. We are unable to inject into the contract that a dismissal of the suit as shown is a compliance of its terms. We think that the fourth, fifth, and sixth paragraphs are in pari materia and should be construed together. The prefatory clause of the contract mentioned the institution of the suit by McRae “seeking to have the above contract of purchase canceled, set aside, and held for naught.” We think an adjudication of some matter is clearly the intendment of the instrument. It is true that the fourth clause directs the deposit of the notes in the First National Bank of Hereford “to be there held in escrow, subject to the final termination of the above-mentioned suit”; but the vitalizing element releasing the escrow and creating the notes as real obligations, is the sixth clause, which is to the effect that if Irwin and Collingsworth county are successful in the suit, and the contract is held valid, “then and in that event, upon a final termination of the suit,” the said notes shall be delivered to the payees; the fifth clause providing that, if the defendants are .unsuccessful, or should the contract be can-' celed, the said notes should be null and void. The fourth clause only designates the retention of the notes in escrow, subject to the final termination of said suit, and the final termination of the same, permitting the delivery of the notes to the payees, occurs after the contract between Irwin and Collingsworth county has been decreed a valid and binding agreement.

The Supreme Court of the United States, in the case of Haldeman v. United States, 91 U. S. 584, 23 L. Ed. 433, in declaring the effect of federal court judgments dismissing cases by agreement, said: “The general entry of the dismissal of a suit by agreement is evidence of an intention, not to abandon the claim on which it is founded, but to preserve the right to bring a new suit thereon, if it becomes necessary.” The same principle was again repeated, and the above cause quoted from by the Supreme Court of the United States, in the case of Jacobs v. Marks, 182 U. S. 585, 21 Sup. Ct. 865, 45 L. Ed. 1246. As to the effect of this federal court judgment dismissing a cause of action, based upon agreement, we are bound by the decisions of the court quoted, and, by virtue of the principle enunciated, the dismissal of the cause, as indicated in this record, did not adjudicate anything. It is true it may be that the parties would have included such a condition, as a dismissal of the cause of action, vitalizing the notes in question, but such a casus omissus we are unable to supply by interpretation, if it were actually omitted. This court would be in the attitude of reforming or reframing a contract without pleadings and without ingredients of accident or mistake for that purpose. We quote from Words and Phrases under the subject of “Final Determination,” vol. 3, p. 2798: “In the stipulation providing that proceeds of certain property shall be deposited to await final determination of an action concerning it, the term ‘final determination’ of the action meant the final settling of the rights of the parties to the action beyond all appeal. Dean v. Marschall, 90 Hun, 335, 35 N. Y. Supp. 724, 726.” In turning to the case referred to, the facts are not similar, and there is only a part of the case bearing out the construction by Words and Phrases, but the same is appropriate as the declaration of a principle applicable to this case.

The only difficulty interfering with the conclusion as to the right of appellants in claiming the creation of the liability of Snyder and Irwin is that the federal court order recites that that cause was dismissed upon the agreement of the attorneys of the parties to that suit. The pleading here.is simply that the dismissal of the suit is the termination of the same, and a happening of the conditions named in the contract, validating the notes. It may be, in a sense, that with reference to Irwin it does not speak well for him to contend that the condition in the contract has not yet matured, and that the mere dismissal of the suit is not a maturity of said condition, when he contributed to such dismissal; but such a condition and such a theory was not adduced to the trial court as a predicate for recovery. If Irwin prevented the maturity of the contract and the happening of the condition by not insisting upon the suit or by not forcing a dismissal upon the merits with a judgment concluding something, and by his action violated the terms of the contract he made with Evants and Hanby, they did not frame their recovery upon such a violation, and we must take the pleadings as we find them.

It may be said that we could have found in favor of Fuqua and the bank upon this discussion and conception of appellants’ cause of action; however, we preferred a full discussion of all of the matters on account of the importance of the litigation and the rights involved,, and, upon the whole, conclude that the judgment of the trial court should be affirmed, and it is so ordered.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    INTERNATIONAL TRAVELERS’ ASS’N v. ROGERS.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Insurance (§ 665) — Action on Policy— SUFFICIENCY — EVIDENCE.
    In an action on an accident policy to recover for the loss of an eye, evidence held to warrant a finding that plaintiff’s eye was injured by external, violent, and accidental means.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dee. Dig. § 665.]
    2. Insurance (§ 527) — Accident Policy — Construction — “Entire. ”
    Under an accident policy providing that, if the accident should result in the loss, within 90 days after an accident, of the “entire” sight of the eye, the insured shall receive not exceeding $1,000, the word “entire” does not mean total blindness; but it is sufficient if the insured had practically lost the entire sight of the eye.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1312, 1313; Dec. Dig. § 527.

    For other definitions, see Words and Phrases, vol. 3, p. 2410.]
    3. Insurance (§ 665) — Action on Policy-Evidence.
    In an action upon an insurance policy, evidence held to show that the insured had lost the entire sight of an eye within the provision for a certain indemnity where the accident results in the loss of the entire sight of an eye.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    4. Evidence (§ 509) — Action on Policy — 'Admissibility or Evidence.
    In an action upon an accident policy, the court properly refused to allow a physician to state that, in his opinion, the insured had not lost the entire sight of his eye.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2312, 2313; Dec. Dig. § 509.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by E. M. Rogers against the International Travelers’ Association. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    ■ Seay & Seay, of Dallas, for appellant. W. S. Bramlett and D. A. Frank, both of Dallas, for appellee.

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

   TALBOT, J.

E. M. Rogers brought this suit against appellant to recover the sum of $1,000, alleging, in substance, that appellant was a corporation organized under the laws of Texas, and engaged, in its corporate name of International Travelers’ Association, in the accident insurance business; that appel-lee was a member of said association, and held a policy of insurance issued by it; that through external, violent, and accidental means he had lost the entire sight of one of his eyes; and that under the terms of the policy he was entitled to recover therefor the amount sued for. In regard to the accident, the appellee alleges “that on or about February 29, 1912, while going along the streets of his home town, and during the time that the said accident insurance certificate was in full force and effect, plaintiff having complied with all the reasonable rules of the defendant, plaintiff was accidentally struck in the eye by a pebble, a piece of sand, dust, dirt, or some foreign substance, the nature of which plaintiff is not able more specially to set out, causing bodily injuries, which were caused solely and exclusively by violent, external, and accidental means, thereby causing inflammation and active ulceration, leaving a dense scar of the cornea over the entire normal pupil, and on account of which plaintiff has sustained the entire loss of the sight of said eye.” Defendant, among other things not necessary to state, pleaded general and special demurrers, a general denial, and specially the following by-law of the association: “Or, if said accident shall result in the loss within ninety days thereafter of the entire sight of one eye, the member shall receive as indemnity one-fifth of the amount collected from one assessment, not exceeding in any event the sum of $1,000.00.” Defendant also specially denied that the appellee had suffered the entire loss of the sight of his eye, but that he was only entitled to injuries of an ordinary character, as provided for in the policy and by-laws. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,000, from which the defendant appealed.

The controlling questions presented by the assignments of error for our determination are: (1) Was the evidence offered sufficient to warrant the jury’s finding that ap-pellee’s eye was injured by external, violent, and accidental means? (2) Is the evidence sufficient to show that appellee, as a result of that injury, lost, within the meaning and contemplation of the by-law quoted above, and pleaded by appellant as a part of the contract made with appellee, the entire sight of his eye? We have reached the conclusions that both of these questions should be answered in the affirmative.

Touching the time and manner of the injury, appellee testified: “On February 27th 1 sustained an accident to my left eye. That was a warm, blustery day. In the portion of Denison that I was in on that day there is sand and gravel, and I sustained this accident at Denison. There was an obstacle that blew in my eye which was enough to cause pain; something like a cinder or gravel, and it caused my eye to smart and burn that afternoon. My eye had not bothered me until up to about 2:30 that afternoon. I got to Denison about 2 o’clock that day. Prior to that time I had not been where the sand was blowing. I had been in my office at Sherman prior to that time. The first notice of the injury to my eye was when it first •burned, and it commenced to hurt me between 2 and 3 o’clock that afternoon. I did not have my eye treated by a specialist on that day, but subsequently I did. Right at the time I didn’t pay much attention to it, but the smarting and burning increased during the afternoon; it got worse in the afternoon. I do not know what' it was that went into my eye; but, whatever it was, the first attention I paid to it was between 2 and 3 o’clock. I went to a druggist on the morning of the 28th of February, and he gave me something to put in my eye. On the morning of the 29th I went to a specialist, and he examined my eye, and treated it. I do not know what it was that went into my eye. I know that something went into my eye some time that afternoon.” Dr. O. O. Ahlers, a specialist on the diseases of the eye, testified that he treated appellee’s eye, and that his books show that he began the treatment on the 29th day of February, 1912, and ceased on the 16th day of June, 1912. He further testified: “In determining the amount of vision a man has with his eye, or in determining the trouble caused by the introduction into the eye of some foreign substance, we have different methods. In the absence of any foreign object being found in Mr. Rogers’ eye when he first came to me, I found, or rather it made me believe, that a portion of the cornea, the epithelium covering the light vision, the covering over the cornea was scuffed off, that is, the deeper layer was scuffed off over quite a large surface — probably a little over one-eighth of an inch in diameter, probably a little more than that Those conditions were the result * * * of some foreign substance scraping that surface off; but I found no foreign substance in the eye at the time I made the examination. * * * Judging from the condition of the cornea that I found in Mr. Rogers’ case, I would say that condition was not caused from any disease.” This testimony of Dr. Ahlers, notwithstanding other competent eye specialists examined and testified concerning the condition of appel-lee’s eye, is practically without contradiction, and, taken in connection with the testimony of the appellee, is amply sufficient to justify the conclusion that appellee’s eye was injured by external and accidental means.

The second question is more difficult of solution. In relation to this question, the appellant requested the court to charge the jury, in effect, “that the word ‘entire’ means all and whole of a thing,” and that, unless they believed from the evidence that appellee had lost the entire sight of his eye, to return a verdict for the defendant. This charge was refused, and the jury instructed as follows: “If you find from the evidence that plaintiff, on or about the 27th day of February, 1912, did by some external, violent, and accidental means, and independent of all other causes, suffer the practical loss of the> entire sight of one of his eyes, and that such loss, if any, was sustained within a period of 90 days from said date, then you should return your verdict for the plaintiff for the sum of $1,000.” Appellant complains of the refusal of the above special charge and the giving of the paragraph of the main charge quoted. Appellee is not entitled to recover $1,000, for which he obtained judgment in the court below, unless the evidence shows that, as a result of the injury received, he has lost, within the meaning of his contract with appellant, the entire loss of the sight of his eye. The evidence discloses that upon the first examination of appellee’s eye it was discovered that the vision of his injured eye was one-twentieth, that upon the second examination a month later it was one-twelfth, and upon an examination made about the time of the trial of this case it .was one-tenth. The appellee testified: “As to the exact vision of that eye, I can make out light from darkness, but cannot see to read.” Asked by one of the attorneys who was at a distance of about 15 feet from appellee, “Can you see me sitting here?” he replied: “I cannot tell who you are. I can tell you are a human.” The attorney having moved farther way, the appellee said: “The distance you are from me now I judge is about 25 feet. I can tell there is something there now; but I don’t know what it is.” Speaking with reference to a book held in the hand of the attorney, appellee said: “I know what that is because I can see the marks of the blur of it. It looks to me just like a blur. I know it is a book because it has marks of a book on the outside. * * * I can see those letters better than I can see the other because the binding is a blur. I am looking at that with my right eye covered; it looks like it is farther away than it really is.” He further said: “I cannot use that eye for reading, and I cannot use it to get about with. I have tried to do so. I ran into a post on one occasion, when I was trying to use it to guide me. I can determine there is a wall before me by the shadow it will make; but I can’t determine as to the distance the wall is from me. I can tell from the outline, or shadow, that a buggy is before me, and I know it is a buggy because of my acquired knowledge of the shape and appearance of a buggy; 'but I can get no idea of how fast it may be moving. I can’t tell how near it is to me until it gets right at me.” Appellant contends that this testimony does not show the loss of the entire sight of appellee’s eye, that this was necessary, under the pleadings and the terms of the policy issued to him, in order to recover the amount sued for in this action; therefore the trial court erred in refusing to grant appellant a new trial on the ground that the verdict and judgment rendered herein was contrary to the evidence, and in charging the jury that, if appellee had “practically” lost the entire sight. of his eye, he would be entitled to recover. Counsel representing the parties state they have found no case just like the one under consideration, and we know of none. We are of opinion, however, that the evidence was sufficient to show that appellee has suffered, as a result of the injury alleged, a practical loss of the entire sight of his eye, and that the trial court correctly charged the jury that, if he had sustained such loss, he was entitled to recover the amount for which he asked judgment, and did not err in overruling appellant’s motion for a new trial.

As held by the courts, there seems to be little or no difference in the meaning of the words “entire” and “total.” Each have been defined to mean “all or whole.” East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 18 S. W. 572; Guthrie v. Wheeler, 51 Conn. 207. This is undoubtedly the literal meaning of the words; but, in cases arising under policies insuring the holder thereof against loss in the event of “total disability,” the courts have not been disposed to hold to a literal construction of the contract. Such a holding, according to the opinion of the Supreme Court of this state, as expressed in Fidelity & Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326, would be opposed to the great weight of authority. In support of this view of our Supreme Court may be cited, as well as many others, the case of Mutual Benefit Association v. Nancarrow, 18 Colo. App. 274, 71 Pac. 423. In this case it is held that the words “totally disabled,” as used in an accident policy, do not mean a state of absolute helplessness. In Brotherhood of Railway Trainmen v. Dee, 108 S. W. 492, the appellant was a fraternal benefit society, and the policy or benefit certificate stipulated that the amount thereof should be paid to the member in the event of his “total and permanent disability.” He became sick and died. The Court of Civil Appeals for the Second District held that from the time he first became sick he was never able wholly or partially to perform the duties of his ¿vocation, and that he was thereby “brought fully within the meaning of the terms ‘total and permanent disability.’ ” The Supreme Court granted a writ of error, and reversed and remanded this case, which had been affirmed by the' Court of Civil Appeals; but the correctness of the holding of the latter court to the effect that the sickness of Dee so disabled him that he was thereby “brought fully within the meaning of the terms ‘total and permanent disability’ ” does not seem to have been questioned. In Turner v. Fidelity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428, where the policy provided foí-an indemnity for injuries which would wholly disable the insured “from prosecuting any and every kind of business pertaining to his occupation,” it was held that a recovery might be had on proof of an injury, and showing that the insured was in the real estate business, and went to his office every day for a short time, but was unable to do any kind of work. The court here, in effect, said that a fair interpretation of the contract was, not that the insured must be so disabled as to prevent him from doing anything, but that he must be disabled to such an extent as to prevent him from doing any and every kind of business pertaining to his occupation. In Singleton v. Boone County Home Mut. Ins. Co., 45 Mo. 250, it is held “that ‘total loss,’ as employed in a policy of insurance, is to be understood in its natural and usual sense, and that, where the property insured was valued at $3,900, and goods to the value of some $70 were saved, the loss was total.” Likewise, in the case of Williams v. Hartford Ins. Co., 54 Cal. 450, 35 Am. Rep. 77, the following charge, which is quoted with approval in H.-B. Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. 337, 59 Am. Rep. 613, was held to be correct: "A total loss does not mean an absolute extinction. The question is not whether all the parts and material composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls were left standing, and some of the iron work still attached thereto, still, if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property was totally destroyed within the meaning of the policy.” The effect of these decisions is to declare that, “where a building is so injured by fire as to lose its specific character as a building, it is' a ‘total loss’ within the terms of an insurance policy, though some of the walls are standing, and some of the material is not destroyed.” These cases are analogous, if not directly in point, to the case at bar, and,justify and sustain the conclusion we have reached that appellee, within the contemplation and meaning of the contract sued on, has suffered, in consequence of the injury alleged, file loss of the entire sight of his eye. The evidence, as we have seen, shows he cannot read with the injured eye, and cannot use it for getting about; that he tried to do so, and ran against a post; that he cannot tell distances with his eye, and cannot tell how near vehicles or objects approaching him, such as a buggy, are to him until they get right at him. He was district commercial manager of the telephone company at Sherman, and, while the evidence does not disclose to what extent he had to use his eyes in the performance of his duties or work in which he was engaged, yet it is manifest that, if his uninjured eye was in the condition his injured one is in, he would not be able to hold his position, and that for all practical purposes an eye in which there remains only a one-tenth vision is of no service so far as performing the duties of a man’s business is concerned. That, in effect, and results, and to all intents and purposes, appellee has lost the entire sight of his eye cannot be gainsaid, and such is the meaning of the word “practical,” as used in the court’s charge.

The assignment complaining of the court’s action in refusing to allow the witness Dr. MeReynolds to state that, in his opinion, appellee had not lost the entire sight' of his eye will be overruled. Such a statement of the witness, under the facts of this case, was, we think, even under the very broad latitude allowed in the introduction of expert testimony, inadmissible.

The evidence supports the verdict; the court’s charge in the particulars complained of is, in our opinion, correct, and the judgment is affirmed.


author: HARPER, J.

text:
    COOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Questions op Pact.
    Where the evidence for the state, if true, makes a case, the verdict will not be disturbed because of a strong conflict in the evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ 659) — New Trial-Misconduct op Witness.
    On a trial for seduction, it was highly improper for the prosecuting witness to kneel in the presence of the jury and offer the prayer: “Oh, dear Jesus, X do pray Thee to be with me during this my hour of trial. Oh, dear Jesus, give me just the words Thou would have me to say” — and, after being cautioned, to again utter the prayer, “Dearest, Jesus, I pray Thee to be with me,” though this in itself might not justify a new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1460; Dec. Dig. § 659.]
    3.Criminal Law (§ 913) — New Trial — Absence op Witness.
    Where accused’s counsel, on the morning that a seduction case was set for trial, learned of two persons who claimed to have had sexual-intercourse with the prosecuting witness prior to the time accused became acquainted with her, and endeavored to locate them without success, but did not ask for a continuance because the trial judge had stated that if such motion was made he would change the venue to another county, though because of the failure to make such motion the absence of such-witnesses as a legal ground for a new trial was waived, their absence presented strong, equitable grounds, justifying a new trial, if the ends of justice would be best subserved,' especially where the evidence was in irreconcilable conflict and other matters prejudicial to accused occurred, though not sufficient in themselves to require a new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 913.]
    4.Criminal Law (§ 723) — Tbiai>-Miscon-duot op Prosecuting Attorney.
    On a trial for seduction, it was improper for the prosecuting attorney to seek to arouse the passions and prejudice of the jury by reference to matters outside the record, and to make an impassioned reference to the jurors’ “loved ones at home” and their “little flaxen haired girl, or the little girl with the black hair and the blue eyes,” for the purpose of arousing the animosity of the jury against the character of offense charged.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    Appeal from District Court, Fisher County; Jno. B. Thomas, Judge.
    Terry Cooper was convicted of seduction, and he appeals.
    Reversed and remanded.
    C. P. Woodruff, of Sweetwater, for appellant. C. E. Lane, Asst. Atty. Gen., and R. C. Chambers, of Anson, for the State.

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

   HARPER, J.

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

The prosecutrix by her testimony makes a plain case of seduction, and corroborated, as she is, by other testimony and the circumstances in the ease, especially that of her sister, Mrs. Tom Smith, we would not feel authorized to disturb the judgment on the evidence, but would and do hold that it is sufficient to sustain the verdict, and this contention is overruled. It is true that appellant testifies positively that he was never engaged to be married to the young lady; that he never at any time had sexual intercourse with her; and he also swears that he, while going with her, informed her that he was engaged to and was going to marry another lady, whom he did marry, in which latter statement he is corroborated by Ms sister, Mrs. Holland, and the issues of fact are strongly in conflict. But questions of fact are for the jury to determine, and, where the testimony offered by the state, if true, makes a case, we should and will not disturb the verdict because of tMs conflict.

By a proper bill it is shown that, when the young lady, Miss Townsend, was called to testify, she knelt in the presence of the jury and offered np the following prayer: “Oh, dear Jesus, I do pray Thee to be with me during this my hour of trial. Oh, dear Jesus, give me just the words Thou would have me to say.” The court did all in his power to remove the effect of this scene, recognizing, as we do, that it was highly improper. But, after being cautioned, the young lady took her seat on the witness stand, and again uttered this prayer: “Dearest Jesus, I pray Thee to be with me.” The court, as well as counsel, again remonstrated, and the court again instructed the jury not to consider this incident in their deliberations.

There, is another matter in the record that should perhaps be considered. It presents no legal ground for the granting of a new trial, perhaps, but the plea has in it some equities. On the morning that this case was set for trial, appellant’s counsel was informed by J. E. Jay that he knew the prosecuting witness and had known her for some three or four years. At the time he formed her acquaintance he was attending college in Abilene. At the same time Lloyd Airhart and Haskell January were also attending this college, and Miss Townsend was attending the high school in Abilene. He swears on the hearing had on the motion for a new trial that both January and Air-hart had told him that they had had sexual intercourse with the prosecuting witness in this case. This was prior to the time that appellant became acquainted with her. Jay also testifies that he never did tell appellant about these facts, but that, on the morning of the day the case was called for trial, he did tell the attorneys for appellant The attorneys at once had process issued for January and Airhart. This was only about five hours before the case was called for trial, and they made no motion to postpone or continue the case, and thus what would otherwise be a legal ground for a new trial was waived. They swear on the motion for a new trial that the reason they did not ask for a postponement or continuance was that, on the day the case was called and set for trial at a future day, the trial judge then informed them they must announce ready for trial on that day or he would on his own motion change the venue of the case and transfer it to Scurry county; that for this reason they announced ready, and hoped to get the witnesses by wire. And the fact ⅛ proven by the record that they did have the district clerk of the county wire and telephone and try to locate these witnesses, and did locate Mr. January, but, the case being called for trial, the district clerk withdrew the process for these witnesses without notifying appellant’s counsel that he had done so until after the trial. As before stated, this does not make a legal showing for a new trial, for if appellant knew, as the record shows he did know, before • announcing for trial, what he expected to prove by these witnesses, when the case was called for trial he should have made an application to postpone or continue the case, and if, because he did so apply, the court arbitrarily transferred the case to another county, properly-reserved his bill to such action and brought that question to us for review. But the fact that his attorneys state they were afraid to make this application for that reason, and they so testify on the motion for new trial, there being no denial that the court had told them he would change the venue, if they made application to continue the case, and the record disclosing the efforts made to get the witnesses during the trial, and the further fact that Mr. Jay, on the motion for a new trial, swears the facts stated are true, present strong equitable grounds on which the trial court is always authorized to act if he deems the ends of justice will be best subserved, for the trial court, this court, nor the state does not desire a man who has committed no offense incarcerated in the penitentiary.

Again it is shown in a bill that the prosecuting officer in his closing speech was impassioned in his address, inclined to abuse of appellant, and went out of the record. Those portions of the speech copied in the bill are too lengthy to be herein copied, going so far at one time that the trial court felt called upon, on his own motion, to stop him before an exception could be urged by appellant’s counsel. Attorneys should never seek a conviction by such methods. Be as ardent, be as sincere, be as eloquent as you may, but always stay within the record, and the public and this court will commend you. But seek not to arouse the passions and prejudice of the jury by reference to matters extrinsic the record, for in a case of this kind, where the testimony is so nearly evenly balanced that any honest jury would be authorized to either convict or acquit and not be subject to any criticism for so doing, these extrinsic matters should not be thrown into the scale, and thus obtain a verdict that might not have been obtained if the record had been adhered to.

The young lady and the young man, as shown by the record in this case, both stood well in the community in which they lived; their reputation for truth and veracity is shown to be excellent; and yet there is an irreconcilable conflict in their testimony in this case. They are both corroborated in their contentions by the facts and circumstances in evidence, and while we would not invade the province of the jury and disturb this verdict because of this conflict, for the jury is alone the judge of the credibility of the witnesses, yet in a case like this, when the testimony is so evenly balanced, and it is solely the credit of the witnesses to be passed on, and they both show such enviable reputations as they each show in this case, and when the above-repited extrinsic matters may have affected the judgment of the jury, and the impassioned appeal made to them as to what they would do under such circumstances, saying that when they went to meet their loved ones at home, and “your little flaxen haired girl, or the little girl with the black hair and the blue eyes comes to you,” etc., are made for the purpose of arousing the animosity of the jury against the character of offense here charged, we are of the opinion that the strong equitable showing made on the application for a new trial should have weight. If the facts there stated can be shown to be true, appellant is guilty of no offense. And as to whether it is true or not is not for us or the trial court to say, but a question to be determined by a jury.

We have read this record more than once, and under this record feel that this case should be reversed and remanded for a new trial, when all the evidence can be placed before the jury, when the prosecuting witness can be cautioned that she must not utter prayers of the kind and character here shown in the presence and hearing of the jury before she begins to testify, and when the prosecuting counsel, with this admonition may keep within the record in his argument. While no one of those facts may be sufficient to authorize a reversal, yet, when they are all taken together, no one can tell its effect, or what influence it may have had.

The judgment is reversed, and the cause remanded.


text:
    DUNNAWAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Assault and Battery (§ 67) — Self-Defense —Evidence.
    K., who had previously shot defendant, entered a store where defendant and some friends were and threw a glass at defendant, striking him in the face. Defendant drew a pistol and struck K. over the head twice, when the difficulty was stopped by friends. Held that, K. having begun the difficulty, defendant used no more force in repelling the assault than an ordinary prudent man would have done under the same circumstances, and his act was justifiable.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    J. D. Dunnaway was convicted of assault, and he appeals.
    Reversed and remanded.
    Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of making an assault on Oscar Kennley. Mr. Kennley was not introduced as a witness, but the testimony shows a former difficulty between the two men, when Kennley shot and seriously wounded appellant. On this occasion it is shown appellant went into a drug store with some friends to get a cool drink. While at the counter, Kennley threw a glass at him, striking him in the face, when appellant drew a pistol and struck Kennley over the head twice. Friends interfered and stopped the difficulty. This is the staters case. Appellant’s case is that, when Kennley threw the glass and struck appellant in the face, he then reached in his pocket as if to draw a weapon, and appellant says, having been shot by Kennley on a former occasion, he thought his life was in danger, and he drew his pistol and struck deceased. That he did not shoot because of the crowd in the drug store. It is manifest by all the witnesses that Kennley began the difficulty and struck appellant in the face with the glass, and under such circumstances we do not think the evidence will justify appellant’s conviction. He used no more force in repelling the assault than any ordinary man would have done.

Reversed and remanded.


author: PRENDERGAST, P. J.

text:
    HOSKINS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, Feb. 18, 1914.)
    1. Criminad Law (§ 1144») — Appeal — New Trial — Denial—Review.
    Where it appeared that the trial court heard evidence on defendant’s motion for a new trial, but the evidence so heard was not in the record, the Court of Appeals would conclude that the testimony did not sustain the motion.
    |.Ed. .Note. — 1 or other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781., 2901, 3016-3037; Dec. Dig. § 1144.*]
    On Motion for Rehearing.
    2. Criminal Law (§ 1099*) — Appeal—Statement of Facts — Filing—Time.
    Where a statement of facts heard on a motion for new trial was not filed during the term, it could not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from District Court,'El Paso County; Dan M. Jackson, Judge.
    Charles R. Hoskins was convicted of forgery, and appeals.
    Affirmed. Motion for rehearing overruled.
    Stanton & Weeks, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted of forgery, and his penalty fixed at four years in the penitentiary. He filed a proper plea seeking to have the jury recommend that his sentence be suspended. The court properly submitted this question to the jury, and the jury refused to so recommend. He pleaded guilty. In his motion for new trial he alleged that he had agreed with the district attorney to plead guilty with the understanding from the district attorney that he should receive a sentence of two years, and it should be suspended. He further therein says that he understands that sentence can only be suspended by tbe court wben recommended by tbe jury, and, tbe jury baying failed to recommend tbe suspension of bis sentence and tbe district attorney being unable to carry out tbe agreement witb bim, he thereupon asked that tbe verdict be set aside, be granted a new trial, another jury impaneled, and again try bis case; that be still insists that be wants to plead guilty, and does not desire to avoid bis agreement to that effect, but wants the state to carry out its agreement witb bim. This is tbe sole ground for a new trial. Tbe judgment of tbe court on said motion shows that tbe court beard evidence thereon and after so bearing tbe evidence overruled tbe motion. What this evidence was tbe record in no way discloses. In bis sworn plea, seeking a suspended sentence, be makes no allegation as to any agreement witb tbe district attorney, but merely “states to the*, court that he has never heretofore been convicted of a felony in this or any other state, and makes application for suspended sentence, in case of conviction, as provided by law.”

Under tbe circumstances we must conclude that the testimony heard by tbe district judge on his motion for new trial did not sustain bis allegation, and that tbe action of tbe court in overruling bis motion is correct. So that tbe judgment will be affirmed.

On Motion for Rehearing.

After tbe original opinion affirming this case was handed down appellant made a motion for rehearing, and for a writ of certiora-ri to require the clerk to send up tbe statement of facts and other data which bad not been filed herein wben tbe original opinion was handed down. We granted the writ of certiorari, and tbe clerk has now sent up, and there has been filed herein, tbe said papers. By them and tbe record in connection therewith it is shown that tbe term of court at which this conviction was bad adjourned June 28, 1913. The court stenographer certifies that be was not called upon by appellant or bis attorneys to prepare the statement of facts of tbe trial, nor that beard on bis motion for a new trial, until September, 1913, and that be at once, on or about September 5, 1913, prepared both said statements of facts and delivered them to appellant’s attorneys. Tbe clerk shows that these papers were not banded to bim for filing or other action until “some time in tbe month of September or October.” And that upon inquiry of tbe district judge who tried tbe case be was told to put bis file mark thereon, as filed July 1,1913, which be did. What purports to be this original statement of facts beard on tbe trial of tbe case is neither agreed to by tbe attorneys for either side, nor is it in any way approved by tbe court. What purports to be a statement of facts beard on tbe motion for a new trial is signed by the district attorney for tbe state and approved by tbe district judge, but it is not signed, nor agreed to by appellant or bis attorneys. This, however, would make no difference, as tbe approval of tbe judge might be sufficient.

In no event can this purported statement of facts beard on tbe motion for new trial be considered by this court. In the first place, as shown above, it was not delivered to the clerk for filing until some time in September or October, 1913. Even tbe file mark placed on it by tbe clerk, of July 1,-1913, was after tbe adjournment of tbe court. It is unquestionably settled in this state that, in order to be considered at all by this court, such statement of facts beard on tbe motion for new trial must be filed during term time; and, unless so filed, this court cannot consider it. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 977; Bailey v. State, 144 S. W. 1005. So that, as tbe record is presented to us, we cannot review appellant’s contention that a new trial should have been granted so that his claimed agreement witb tbe district attorney that his sentence should be suspended could be enforced, even if tbe district attorney bad power and authority to make any such agreement.

Tbe motion is overruled.


text:
    NEWMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Physicians and Surgeons (§ 6) — Unlaw - ful Practice — Osteopath.
    In a prosecution for unlawfully practicing medicine, evidence showing defendant’s treatment of disease by rubbing, manipulation, etc., held to justify conviction.
    [Ed. Note. — Eor other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    Appeal from Tom Green County Court; Oscar Erink, Judge.
    J. M. Newman was convicted of unlawfully practicing medicine, and be appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for tbe State.

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

   HARPER, J.

Appellant was convicted of unlawfully practicing medicine, and prosecutes an appeal to this court; tbe only assignment of error being that the evidence is insufficient to sustain tbe conviction. Max Abram testified: “On tbe 21st day of March, 1913, defendant and I bad a talk in tbe presence of Mr. Beavers and Mrs. Beavers. I am not certain that tbe defendant’s wife was present, b.ut the defendant told me in that conversation that he would give me a month’s treatment for 550. I told him I only had $65 in the bank; that I,owed his sister, Mrs. Bearers, for board, and did not want her to wait for her money, but that I would pay him $25 for a half month’s treatment. He said, ‘When you go to make a horse trade it’s best to have an understanding,’ and went into another room with me. I told him I had tuberculosis and I asked him how long it would take him to cure me, and he said he didn’t know just how long; it might be one month, and might be two, or might be three, or maybe longer. He agreed to take the $25 for the half month’s treatment, and I wrote him a check for that amount. When I offered him the check he said he didn’t want any check, as the doctors had it in for him. I went to town that evening and cashed a check and gave him $25 in currency. On Wednesday, the 26th day of March, 1913, defendant treated me; this being the week following the day when I paid him the money. He said he would show me how to manipulate my limbs and muscles, so as X could treat myself. He rubbed my wrists; he said that was to relax my muscles. He rubbed the buttoms on my feet; he said that would stimulate my heart’s action. He examined my back and rubbed it, and said that some of my vertebrae were out of place; that he would have to replace them before I could get any relief from his treatement. He said that the vertebrae could be replaced by manipulation. He would turn my head to one side, and then turn it to the other; he said that would improve my breathing. He would place his knees to my back, between my shoulders, and then pull me toward him; he said that would take the soreness out of my shoulders and arms. He said to relieve appendicitis he would stand a patient on his head. He gave me eight treatments on successive days, and it was only after he had given me three or four of them that he said anything about giving me lessons, and was not treating me. Prior to the conversation above related, when defendant and I went in the room together, he had not told me he could cure me or that he had cured others. Up to that time I had only heard things of that sort through his sister. All this happened in Tom Green county, Tex. The defendant did not claim to be a doctor or surgeon. He did not diagnose my case. I told him I had tuberculosis. He told me at the fourth treatment that I could eat anything I wanted. I had no appetite to eat. I have nothing specially against the defendant, only that he played me for a sucker and got my money. I speak to him when I meet him on the street. I heard that he talked about me and'my conduct with a young lady while boarding at his sister’s. This is why I made the complaint against him In this case. And he opened one of my cavities, too, is another reason Why I made the complaint against him. The state and defendant agreed in open court that defendant had no license or other authority on record in the office of the district clerk of Tom Green county, Tex., authorizing him to practice medicine.”

The case was tried by the court, a jury being waived, and the above testimony would authorize the court to find appellant guilty of the offense charged.

Affirmed.


text:
    GATLIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Criminal Law (§ 721) — Appeal—Review —Accused’s Failure to Testify — Reference.
    Where, in a prosecution for horse theft, the district attorney refused to permit a witness to state a conversation with accused, saying, “M. is here and can tell it himself, that would be hearsay,” defendant having failed to testify, such statement did not constitute such a reference to his failure to do so as would warrant a reversal; the court having charged that the jury should not consider or allude to defendant’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    2. Names (§ 16) — Variance.
    Where the indictment charged that the property whs stolen from one James, but the proof was theit his name was Janes, but that he was commonly known as James, there was no variance.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.]
    3. Criminal Law (§ 478) — Witnesses—Experts.
    Where certain witnesses testified that they were experienced stockmen and had followed the business for many years, and had had such experience as would enable them to testify as to brands on horses and cattle, and the defacing thereof, they were competent to testify to a brand on a horse defendant was charged with having stolen, as it was originally and as to its alleged alteration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. § 478.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Martin Gatlin was convicted of horse theft, and appeals.
    Affirmed.
    Stevens & Stevens, of Liberty, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

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

There is a bill of exceptions in the record that recites that, while the district attorney was cross-examining the witness Gilbert Freeman, the following proceedings took place: “Q. You say you saw the horse Martin Gatlin rode 12 months afterwards, and you took him to be the same horse? Ans. Yes, sir; but just wait; will you let me say what Martin told me? District Attorney: No, sir; Martin is here and can tell it himself; that would be hearsay.” Defendant contends that is a reference to defendant’s failure to testify; that it is violative of the statute, and called the attention of the jury to the fact that appellant could testify. The court instructed the jury: “You are further charged that the fact that the defendant has failed to testify in this case must not be used against him as a circumstance, and the jury must not allude to the failure of the defendant to testify while deliberating upon their verdict in this case.” This charge in and of itself calls the attention of the jury to the fact that a person on trial can testify if he so desires, and yet the giving of it has been approved in an unbroken line of decisions for a number of years. The district attorney did not comment on the fact that appellant had failed to tell it, and made no allusion to the matter after this incident connected with the examination of the witness. When the witness asked him if he would let him tell what Martin had said, the district attorney replied, “No, Martin is here and he can tell himself; it would be hearsay.” The fact that Martin was there was known to every juryman; he had to be there during the trial. That furnished the jury no information, and we think every intelligent man now knows that a person on trial can testify if he so desires. At the time this remark was made, the district attorney could not and did not know whether or not Martin Gatlin (defendant) would testify. It was an incident of the trial, and not intended, and could not be construed by the jury as criticising or commenting upon the failure of the defendant to testify. It is true that the statute (article 790) provides that the failure of a defendant to testify shall not be alluded to nor commented on by counsel, but can this be said to be a comment on his failure to testify. Of course, it is better that such remarks should not be made; but where they are incidentally made, as in this instance, does this present ground for reversal, when the court subsequently instructs them that they must not take his failure to testify as a circumstance against him, there being no contention that the jury did consider the matter, or it was ever thereafter even remotely referred to, when it subsequently developed that defendant did not intend to testify in the case? This court has frequently stated the rule to be that a reversal should not be had for the mere incidental mention of appellant’s failure to testify, but that, before a new trial should be granted, it must reasonably appear that the language used or reference must be such that it might probably have prejudiced the defendant’s cause. Johnson v. State, 53 Tex. Cr. R. 339, 109 S. W. 936; Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357. Of course, whenever counsel refers to the ifact that a defendant has not testified, and it could by any construction be held to have probably influenced the jurymen in rendering their verdict, it will present error; but in a case like this case, where the district attorney during the trial, in replying to a question, incidentally and unintentionally uses language of the character used in this case, it is not a violation of the statute, and presents no error.

The indictment alleges that the animal was stolen from Jarrett James. The proof shows that his name was Janes, not James, but the testimony further shows he was commonly known and called James; in fact some of the witnesses state they thought that was his name until this trial, and they had known him for years. Under such state of facts, this presents no variance, and it was not error to admit the testimony that he was so known. Article 456, Code of Criminal Procedure; Lott v. State, 24 Tex. App. 723, 14 S. W. 277; Taylor v. State, 27 Tex. App. 44, 11 S. W. 35; Young v. State, 30 Tex. App. 308, 17 S. W. 413; Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508.

Ben Hebert, W. P. McFadden, Archie Middleton, B. S. Brown, and others testified that they were experienced stockmen, and had been following that business for many years; and their testimony bears out the fact that they had had such experience as to enable them to testify to brands on horses and cattle, and the defacing thereof. If men of such experience could not testify in regard to such matters, such evidence would be wholly unobtainable, and the court did not err in permitting these witnesses to testify in regard to the brand originally, in their opinion, on the animal, and it being changed.

No other errors are complained of in the motion for a new trial, and the judgment is affirmed.


author: PRBNDERGAST, P. J.

text:
    HOWARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Intoxicating Liquors (§ 146) — Wrongful Sale — “Sale”—Baktek.
    A loan of whisky to be returned in whisky is a sale within the act prohibiting the sale of intoxicating liquors in prohibition territory.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dee. Dig. § 146.

    For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. S, p. 7793.]
    2. Witnesses (§ 268) — Cross-Examination.
    Where, in a prosecution for illegally selling intoxicating liquors, a witness for defendant testified that he borrowed a quart of whisky from accused and did not buy or pay for it at the time, the county attorney could ask him on cross-examination if he did not give accused a dollar for it when he got the whisky, and whether the dollar he then gave him had not been sent by witness’ brother by him to be paid to accused on a debt, as witness testified.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]

      3. Witnesses (§ 398) — Gross-Examination— Contradiction.
    Where a witness testified that he borrowed a quart of whisky from accused and did not buy or pay for it at the time, the county attorney, by cross-examining the witness as to his payment of a dollar to accused at the time he got the whisky, did not make the witness his own, so as to deprive him of the right to disprove the witness’ statement that the dollar that he paid accused at the time was not for the whisky, but to pay a debt of witness’ brother.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1267, 1274, 1275; Dee. Dig. § 398.]
    4. Criminal Law (§ 687) — Trial — Reception of Evidence — Reading to Jury.
    Where, in a prosecution for unlawfully selling liquor in prohibition territory, the state offered certified copies of the minutes of the commissioners’ court showing the taking of the necessary steps to put the law in force, and, after an objection that the copies were not the best evidence had been ovex-ruled, defendant waived the reading of the copies to the jury and consented that the jury might take them on retirement, and then, after the opening argument of the county attorney, defendant requested the court to charge the jury to acquit him because the state had failed to prove that the prohibition law was in force at the time of the sale, because the certified copies had not been read, it was within the discretion of the court to permit the reading at that time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622, 1625; Dec. Dig. § 687.]
    5. Intoxicating- Liquors (§ 39) — Wrongful Sale — Prohibition—Evidence.
    In a prosecution for selling intoxicating liquors in prohibition territory, the putting in force the prohibition within the territory may be proved either by the minute book, where the orders are entered in the minutes of the commissioners’ court, or by properly certified copies thereof.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. § 39.]
    6. Criminal Law (§ 858) — Trial—Reception of Evidence, — Taking Evidence to Jury Room.
    In a prosecution for selling intoxicating liquors in prohibition territory, the jury were authorized under Code Cr. Proc. 1911, art. 751, to take certified copies of the orders putting-prohibition in force in the territory which had been in evidence with them on retirement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.]
    7. Intoxicating Liquors (§ 131) — Wrongful Sale — Prohibitive Sale.
    Intent is not an essential element of the offense of unlawful sale of intoxicating liquor in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 140, 161; Dec. Dig. § 131.]
    8. Criminal Law (§ 912½) — Motion for New Trial — Grounds—Right to Allege Error.
    An objection that the sheriff was not sworn before he summoned one talesman, and that such talesman completed the jury and sat in the case, could not be made for the first time on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 912½.]
    Appeal from Madison County Court; J. M. Brownlee, Special Judge.
    Robert Howard was convicted of the unlawful sale of intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    O. B. Lane, Asst. Atty. Gen., for the State.

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

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

   PRBNDERGAST, P. J.

From a conviction for unlawfully selling intoxicating liquors in prohibition territory, appellant was assessed the lowest punishment — a fine of $25 and 20 days in jail.

The uncontradicted evidence by appellant himself and the only two witnesses who were introduced showed that on the date charged appellant came from Madisonyille in Ms wagon, passing where the other two witnesses were, and that he had gotten at Madisonville and had with him at the time some whisky. Frank Dowell, one of these witnesses, testified that when appellant approached them he asked him if he had “anything.” - Appellant replied, “Yes.” The witness asked him if he could get some. He replied, “I don’t know; I reckon so.” The witness then told appellant he wanted some for a sick man, telling who it was. He then said: “We (meaning himself and the other witness, Allphin) then got in appellant’s wagon and rode down the way a piece with him.” The witness said: “I told the defendant that I would have a shipment in in a few days, that I had ordered some, and that when it came I would pay him back with a quart of mine. He handed me a quart of whisky. I did not pay the defendant one cent for what whisky I got from him. What I got from him I borrowed intending to pay it back when mine came in that I had ordered.” That Allphin then spoke to Mm and told appellant that he wanted a quart. Appellant said the whisky cost him a dollar a quart at the bar. He then handed Allphin a quart, and Allphin handed Mm a dollar.

The appellant himself testified substantially as did said witness Dowell, except that he said he did not say that he paid a dollar a quart for the whisky at the bar, and he further said that Allphin borrowed the quart of whisky that he, Allphin, got and was to return to him in the place of it another quart when his came in. And, further, that while Allphin did give Mm a dollar at the time that he told him that it was a dollar owed appellant by AllpMn’s brother; and he had sent the money to him. The appellant then introduced said Allphin, who substantially corroborated appellant’s statement. In other words, appellant testified that on said occasion he loaned each of those witnesses a quart of whisky, each to return, in place of it, a quart when they got their whisky. Allphin testified to the same thing. The difference between them was that Dowell testified that appellant at the time sold to Allphin the quart of whisky Allphin got from him and paid a dollar for it. Allphin and appellant claimed that he didn’t sell it to him at the time, bnt that the dollar was a dollar his brother owed appellant and sent to him at the time. They all testified that neither witness repaid to appellant the quart of whisky each got from him at the time. They offered to do so but appellant refused to accept it under advice after this prosecution was begun. In any and every contingency, under the law of this state, even if appellant only loaned to Allphin the whisky, which was to be paid back in whisky, this was a sale in violation of the prohibition law. Morris v. State, 64 Tex. Cr. R. 499, 142 S. W. 876.

Allphin, appellant’s witness, in his direct examination in effect testified that he borrowed a quart of whisky from appellant and did not buy it or pay for it at the time. On cross-examination, the county attorney had the right to ask him if he didn’t give appellant a dollar for it at the time he got the whisky; and then to cross him further with a view of showing that he paid that dollar for the whisky, and that that dollar was not sent by his brother by him to appellant All this was proper cross-examination.

By this cross-examination the state did not make the witness Allphin its witness, and it was not bound by his answers, but the state could disprove them as it did by the other witness.

By other bills it is shown that when the state was first making out its case, in order to show that the prohibition law was in force in Madison.county, it produced and offered in evidence certified copies of the minutes of the commissioners’ court, showing all the necessary things to show that the law was in force. At the time the appellant objected to the certified copies, contending that the records themselves were the best evidence. • The court overruled this objection. The copy was not read to the jury at the time, because, as the court says in qualifying the bill, the defendant waived the reading of it and consented that the jury might take it with them in their retirement and deliberation of the case, which the jury did. That after the evidence was concluded the county attorney made and closed his opening speech. Appellant, by his attorney, thereupon requested the court to charge the jury to acquit the defendant because the state had failed to prove that the prohibition law was in force at the time of the alleged sale. Thereupon the court permitted the county attorney, at that stage, to read to the jury the said certified copy. Even if, under the circumstances, it had been necessary to read these orders to the jury before the argument began or the evidence closed, the court, under the statute and decisions, clearly had the discretion to permit it to be done at the stage he did, and by such permission, at that time, he did not abuse his discretion. O. C. P. art. 718.

Either the minute book, where these orders were entered in the minutes of the commissioners’ court, were admissible, or properly certified copies thereof. One was just as admissible as the other — made so by the statute. Clayton v. State, 149 S. W. 124. As we understand, there was no contention in the court below that these certified copies did not fully show a proper election for prohibition and all the other necessary orders, publication, etc., to put prohibition in force. The objections only were that the copies were not admissible, and that the county attorney didn’t have the right to read them to the jury after he had closed his opening argument.

The jury had the right to take with them, on retiring to consider their verdict, the certified copies of the said orders, which were used in evidence. C. C. P. art. 751. Besides, the appellant expressly agreed that they could do so. Hence their doing what the statute authorized them to do, and to which appellant agreed, was correct, and in no event is appellant’s complaint of this action error.

The court properly refused to give appellant’s special charge to the effect that if appellant had no intention of violating the local option law to acquit him. Intent has nothing to do with the violation of this law. A loan of whisky to be returned in whisky is a sale. Morris v. State, supra.

This case was tried October 15, 1913.. Two days later, for the first time, in his motion for new trial, appellant claimed that the sheriff was not sworn before he summoned one talesman, and that that talesman completed the jury and sat thereon. In hearing the motion for new trial the court heard evidence, and it is established that the sheriff had not been sworn before he summoned that talesman. He has no bill of exceptions on the subject. It is too late, after the trial, for the first time to raise any such question. If at the time the juror was summoned he had made any such objection, and he had saved his point by bill of exceptions, a different question would be presented. Doubtless if he had at that time made the objection, the court would have sustained the objection, sworn the sheriff, and had him to summon a talesman. No injury is shown to appellant by the failure of the court to swear the sheriff before he made this summons. Williams v. State, 29 Tex. App. 100, 14 S. W. 388; Adams v. State, 35 Tex. Cr. R. 296, 33 S. W. 354; Bizzell v. State, 162 S. W. 861, and cases there cited.

No other verdict, under the evidence in this case, should or could legally have been rendered than that of guilt under the appellant’s own testimony. His punishment was fixed at the lowest prescribed by law.

The judgment is affirmed.