text:
    DRISKILL v. BOYD.
    (No. 5610.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 10, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Appeal and Error <&wkey;122 — Judgments Appealable — Dissolution op Injunction —Statute.
    Under Rev. St. 1911, art. 2079, declaring that no appeal will lie from an interlocutory order of the district court appointing a receiver, and article 2080 giving an appeal to Courts of Civil Appeals from orders dissolving temporary injunctions, plaintiff, who had obtained a temporary injunction against defendant to restrain him from disposing of certain funds in his hands alleged to belong to plaintiff, and whose prayer for the appointment of a receiver was denied, with a dissolution of the injunction, had the right to appeal from a judgment dissolving the injunction, notwithstanding the refusal to appoint a receiver.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 60, 866-874; Dec. Dig. <&wkey;> 122.]
    2. PARTNERSHIP <&wkey;15 — RELATION — TRADE Agreement.
    An agreement whereby plaintiff, defendant, and other independent cotton buyers, agreed to

      bulk their cotton from time to time, that payments therefor should be made to defendant who was to distribute the funds by paying to each party the cost price paid by each for the cotton put in by him, and divide the profits among the parties, did not constitute a partnership as to plaintiff’s funds where there were no losses and the profits had been satisfactorily divided.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig.- § 2; Dec. Dig. <&wkey;>15.
    For other definitions, see Words and Phrases, First and Second Series, Partnership.]
    3. Trusts <&wkey;101 — Constructive Trust-Money Received by Agent.
    Where defendant under such agreement made a sale of cotton put in by plaintiff at a profit and received the proceeds of the sale and paid over to' plaintiff only a part of the amount which the cotton had cost plaintiff, the proceeds were received by defendant as the agent of the plaintiff, and were the property of the plaintiff in defendant’s hands in trust for plaintiff.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 152; Dec. Dig. &wkey;101.]
    4. Trusts <&wkey;372 —Establishment—Money Held by Agent — Evidence.
    In plaintiff’s suit upon such agreement the court’s refusal to hear testimony offered by plaintiff, material as tending to establish his allegations that under the agreement the defendant had received the proceeds of cotton put in by plaintiff and had not paid over the cost price to plaintiff, was erroneous.
    [Ed. Note--For other cases, see Trusts, Cent. Dig. §§ 600-603; Dec. Dig. &wkey;372.]
    5. Injunction <&wkey;>103 — Grounds — Protection oe Trust Fund.
    Where defendant, under the terms of an agreement between plaintiff, himself, and other independent cotton buyers, received cotton put in by plaintiff and the proceeds therefor and did not pay over the cost price to plaintiff as required by the agreement, but held it as agent for plaintiff in trust, a temporary injunction restraining defendant from disposing of the fund was erroneously dissolved under the rule that where a trust fund is in litigation, an injunction may be granted to preserve it for the party to whom it may belong upon the final decree.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 357-371; Dec. Dig. &wkey;163.]
    6. Receivers <&wkey;19 — Grounds—Trust Fund.
    In such case where it appeared that the defendant was insolvent, so that plaintiff’s judgment against him could not be collected on execution, the court should have appointed a re-
    ceiver.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 27; Dee. Dig. &wkey;19.]
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by W. P. DriskiU against J. H. Boyd. From an order dissolving a temporary Injunction and refusing to appoint a receiver, plaintiff appeals.
    Reversed and remanded.
    J. D. Williamson, of Waco, for appellant. .Marshall Surratt and Neff & Taylor, all of Waco, for appellee.
   JENKINS, J.

Appellee insists that this appeal should be dismissed, for the reason that it is an attempt to appeal from an interlocutory judgment refusing to appoint a receiver. It is true that no appeal lies from such a judgment. R. S. art. 2079; Cone v. Hudson, 139 S. W. 1167. It is also true that appellant prayed for the appointment of a receiver, and that such prayer was denied by the court. But, in addition to the prayer for the appointment of a receiver, the appellant had theretofore obtained a temporary injunction against appellee, restraining him from disposing of certain funds in his hands, alleged to belong to appellant, and the court upon motion of appellee, not only refused to appoint a receiver, but also dissolved said injunction. Appellant had the right to appeal from the judgment of the court dissolving the injunction (R. S. art. 2080), and it is immaterial that the judgment also shows that the court refused to appoint a receiver.

Appellant’s petition alleges, in substance, that he and appellee and two others, each of whom was an independent cotton buyer in Waco, Tex., buying cotton for himself with his own money or credit, with the view of Obtaining a better price for their cotton by selling in large lots, entered into an agreement to bulk their cotton from time to time; that payments therefor should be made to appellee, who was to distribute the funds thus received'by paying to each of said parties the cost price paid by each for the cotton put in by him, the profits to be divided among said parties. That in pursuance of such agreement there were two sales made, into which appellant put 345 bales of cotton, which cost him $20,953.60 of" his "own money, and that the amoimt received for said 345 bales was in excess of $20,953.60. That appellee received the full amoilnt for which said cotton was sold and paid over to appellant only the sum of $15,384.60, leaving a balance in his hands of $5,569, which he had failed and refused to pay over to appellant, and that he still had the same on hand, or at least a large portion thereof, $2,500 of which was then in the hands of M. C. H. Park who was holding the same for appellee. Park’s relation to this money is shown by allegations in appellant’s petition to the effect that appellant filed an involuntary petition in bankruptcy against appellee, and for the purpose of impounding said funds, secured the appointment of Park as receiver, to whom appellee turned over $2,500 of said funds, and that subsequently said petition for bankruptcy was dismissed for the reason there were not three creditors who joined in said petition, and that the federal court ordered said receiver to return said funds to appellee; that said funds being in the custody of the federal court, could not be reached by attachment of a garnishment. Appellant further alleged that appellee was insolvent, and that unless restrained from doing so, he would convert said funds to his own use, and put them beyond the reach of appellant.

Upon the hearing of the motion to appoint a receiver and also the motion to dissolve the injunction, the judge of the district court, upon his own initiative, called to the stand and examined the appellant, the appellee and the appellant’s witness Neal, and refused to receive or hear further evidence, as appears by appellant’s bill of exceptions, and upon this action of the court is based appellant’s first assignment of error.

The testimony heard by the court established the fact of the contract and sale of the cotton, substantially as alleged by appellant. The appellant testified that the amount alleged due him from the sale of the cotton was as alleged by him. Appellee testified that he had a final settlement with appellant, in which he had paid appellant the full amount due him. Neal testified that appellee admitted, at a date subsequent to such alleged settlement, that he had in his possession some $2,700 or $2,800 belonging to appellant. Appellant, as shown by said bill of exceptions, offered to prove by another witness “the agreement relative to the handling and disposition of the cotton; payment for the same, and that defendant Boyd had collected for such cotton and had not paid over to Driskill the original cost moneys paid to him therefor.” As above stated, the court refused to hear said testimony.

It was and is the contention of appellee that the transaction as pleaded and proven did not constitute a partnership, and that if appellee is indebted to appellant in any amount, the same is an open account, for which reason the court was not authorized to appoint a receiver nor to issue an injunction against appellee. It was and is the contention of appellant that the proceeds of the sale of the cotton in the hands of appellee is a trust fund, and that, pending the suit to establish the allegations of his petition, he is entitled to both an injunction and the appointment of a receiver. The court evidently took appellee’s view of the matter. The testimony elicited by the court, aside from the question of insolvency of appellee, went mainly to the question of partnership. Appellant .admitted in open court that he did not think the transaction constituted a copartnership, and thereupon the court refused to hear further testimony.

We agree with the court and the parties hereto that the transactions of the parties did not constitute a partnership as to the funds involved in this suit. (There were no losses and the profits appear to have been divided satisfactorily to all parties.) But we do not think that for that reason alone the court should either have refused to appoint a receiver, or have dissolved the injunction. Our view of this case is that the pleadings show that appellee received the proceeds of the cotton as the agent of appellant, that such proceeds in his hands are the property of appellant, held in trust by appellee for appellant, and that the court erred in refusing to hear the testimony offered, which certainly was material as tending to establish such allegations. Lynn v. Bank, 40 S. W. 228; Cotton v. Rand, 92 S. W. 266.

Appellant’s second assignment of error, omitting that part which refers to the refusal of the court to appoint a receiver, is, in substance, that the court erred in dissolving the temporary injunction for the reason that it appeared that appellee received the money of appellant as agent, and refused to pay over the same. Had the court heard the testimony as to whether or not the appellee had fully settled with appellant, and found from such testimony in favor of appellee, we would feel ourselves bound by such finding. But it is apparent from the record that the court did not do this, but held, as a matter of law, that appellant was not entitled to have a receiver appointed because no copartnership was shown, and for that reason he was also not entitled to an injunction.

“Where the matter in litigation is a trust fund, an injunction may be granted to preserve the fund and secure it for the party to whom it may belong upon the final decree.” 22 Cyc. 823.

Why? Because the property does not belong to the party in whose possession it is. This we conceive to be the principle upon which injunction is granted in many cases— the basic reason for same. For example, it is well settled that, in a proper case, injunction will be granted in partnership matters to prevent the diversion by one of the partners of the partnership funds; in divorce suits, to prevent a husband from disposing of community property, and against executors and guardians, to prevent an improper distribution of an estate. While a partnership for certain purposes is not a legal entity, it is such to the extent that its property, for certain purposes, does not belong to the partner who may be in possession, but to the partnership. While the legal title to community property may be in the husband, the equitable title is in the community estate. The equitable title to an estate is not in the executor or the guardian, but in the devisees or the heirs. And likewise, the equitable title to property held in trust is not in the trustee, but in the cestui que trust. It is not in fact the property of the trustee, and for this reason he may be enjoined from disposing of it. It is also well settled that, where an agent invests the money of his principal in property, taking the title in his own name, the principal may recover such property. Why? Because he is the real owner thereof. But it is apparent that he is no more the owner of property purchased with his money, where title is taken in the name .of his agent, than he was of his money in the hands of such agent before such investment was made.

Before closing this opinion we deem it proper to say that the evidence of appellee heard by the court showed that he is insolvent. That is to say, if appellant should recover judgment against appellee either for the amount claimed, or for the amount which Neal testified that appellee admitted that he had failed to pay over to appellant, such judgment could not Be collected By execution. The appellee testified that the only property that Be owned was Bis Bomestead, consisting of aBout 77 acres of land, wortB Between $8,000 and $9,000, upon which Be owed $2,500, and some Borses and cattle aBove Bis exemptions, wortB $500 or $600, and tBat Bis indeBtedness, in addition to tBat on Bis Bomestead, and tBat claimed By appellant in tBis suit, was $200 or $300; tBat tBere was owing to Bim aBout $1,000.

We think tliat tBe court sBould have Board tBe testimony offered, and, if satisfied of tBe proBaBle trutB of appellant’s allegations, Be sBould Bave appointed a receiver. We cannot reverse tBis case on account of tBe refusal of tBe court to appoint a receiver, as no appeal can Be taken from tBe judgment in tBat respect. We do, Bowever, reverse and remand tBis ease on account of tBe error committed By tBe judge in refusing to Bear tBe proffered testimony, and in dissolving tBe temporary injunction.

Reversed and remanded.
      <gr=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other oases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PADGETT et ux.
    (No. 5535.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 17, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Carriers <&wkey;319 — Passengers—Personal Injuries — Mental Suefeeiing.
    Plaintiff, accompanied by five children ranging in age from 2 months to 11 years, went to defendant’s depot for the purpose of taking a train, and purchased a ticket for such train. The train was late, and while she was waiting the agent closed the station for the night, compelling her to wait outside on ground which was wet and muddy, where she was subjected to the bites and annoyances of mosquitoes and other insects, for three hours; there being no hotels convenient or accessible, nor any other place where she could wait. A construction train was within about 50 yards of the depot, and negroes and Mexicans from such train were constantly passing up and down the track. She claimed to have suffered physical pain, personal inconvenience, and fright, as well as mortification and humiliation. Held, that she was entitled to recover from the railroad company; the rule that actual damages cannot be recovered for mental suffering, in the absence of physical injury or other element of actual damage, not applying, since a contractual relation existed between plaintiff and the railroad company, and there was some proof of personal discomfort and physical injury.
    [Ed. Note. — ITor other cases, see Carriers, Cent. Dig. §§ 1338-1345; Dec. Dig. &wkey;319.]
    2. Carriers <&wkey;247 — Duties to Passenger— Depot Accommodations.
    A person going to a railroad depot, intending to take a train and purchasing a ticket for transportation, was a passenger, with the right to remain in the depot to await the arrival of the train, and it was the duty of the railroad company to provide a comfortable room for her and her children, by whom she was accompanied.
    ■[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dee. Dig. <&wkey;247.j
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by John Padgett and wife against tBe St. Louis SoutBwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant.
   RICE, J.

This suit was brought by JoBn Padgett and wife against tBe appellant to recover damages for personal discomfort, fright, and humiliation suffered by Bis wife on account of her alleged expulsion from the passenger depot of appellant at South Bosque, a way station on said road. The appellees, in substance, alleged that Mrs. Lula Padgett, accompanied by her five children, ranging from 11 year's to 2 months, went on the afternoon of May 22d to said depot for the purpose of taking passage on appellant’s train to Waco, reaching said station about 4:30 o’clock, some 20 minutes in advance of the schedule time for the arrival of the train; that she purchased tickets for herself and such of her children as were subject to pay fare, and remained in the depot awaiting the arrival of said train, which was late, until 7 o’clock, at which time the agent informed her that she must leave the station, as Be intended to close it up for the night, and that Be would not return, but that if she desired to do so she could occupy the waiting room for negroes, which was not lighted; that it had been raining, and the ground about said depot was wet and boggy; that there were no hotels convenient or accessible, nor any other place to which she could repair while awaiting the arrival of teaid train; that she was forced by the act of said agent in closing said depot to remain on the outside, on the wet and muddy ground, with her children, subject to the bites and annoyances of innumerable mosquitoes and other insects, for the space of about three hours; that there was a construction train, the crew of which was composed of Mexicans and negroete, within about 50 yards of the depot; that it was a dark night, and that up to within a short time of the arrival of said train there was a constant passing up and down the track of the negroes and Mexicans, by reason of all of which she suffered great physical pain, personal inconvenience, and fright, and was mortified and humiliated.

Appellant replied by specific denials of plaintiff’s allegations, and relied upon the plea of contributory negligence, alleging that Cartwright’s store, which was open, and at which railroad tickets were sold, was within 100 feet of the depot, where she could have remained while awaiting the arrival of the train, which arrived about 10 o’clock, and also that Mrs. Beck, who lived near by, extended Mrs. Padgett an invitation to stay at her house while waiting, which she declined.

The case was tried before a jury on special issues, and resulted in a verdict and judgment in behalf of plaintiffs for the sum of $250, from which appellant has prosecuted this appeal, assigning error in the refusal on the part of the court to give a peremptory instruction in its behalf, on the ground that the evidence failed to show that plaintiffs were entitled to recover. Appellant asserts by its proposition thereunder that actual damages cannot be recovered for mental suffering, in the absence of physical injury or other element of actual damage—citing in support of this contention G., C. & S. F. Ry. Co. v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866; Same v. Hayter, 93 Tex. 239, 54 S. W. 944, 41 L. R. A. 325, 77 Am. St. Rep. 856; Tarvin v. T. & P. Ry. Co., 151 S. W. 640.

The material averments of plaintiff’s petition were sustained by the evidence, and the jury found that plaintiff was not guilty of contributory negligence, and there was evidence to Support this finding. While the authorities cited support appellant’s contention still we think that they can be differentiated and distinguished from the instant ease. G., C. & S. F. Ry. Co. v. Trott, supra, was an action to recover damages for fright and fear for appellee’s personal safety on account of negligently causing his team of horse's to run away; but there was no averment or proof of physical injury, nor did any contractual relation exist between the plaintiff and the railway company. In the present case such relation did exist, and there was some proof of personal discomfort and physical injury.

The case of G., C. & S. P. Ry. Co. v. Hayter, supra, its not, we think, in point, because in that case it was held that, where physical injury results from fright or other mental shock caused by the wrongful act or omission of another, the injured party is entitled to recover his damages, provided the act or omission was the proximate cause of the injury, and that the injury, in the light of all the circumstances, ought to have been anticipated as the natural and probable consequence thereof; and in that case there was no contractual relation existing between the railway company and the plaintiff, the injury complained of having been caused by a collision of the trains of the Missouri, Kansas & Texas Railway Company, on which Hayter was a passenger, and the Gulf, Colorado & Santa Fé.

The Tarvin Case cited is not applicable, we think, because the only doctrine involved there was that of proximate cause. In that case Tarvin brought suit against the railway company to recover damages alleged to have been sustained by him on account of the fact that his trunks were placed in a baggage car in which there was a corpse so badly decomposed that his trunks were caused to smell, and were thereafter searched by the authorities on Suspicion that they contained a dead body, and the action was based on humiliation suffered therefrom. The court held that the injury was not the proximate result of the acts complained of, saying that it will be observed that the damage claimed was not on account of any injury to the trunks, or to the person of plaintiff, but arose solely on account of the humiliation suffered by reason of the suspicion that the trunks contained a dead body, and the humiliation caused by the search therefor.

In the instant case plaintiff’s wife was a passenger, with the right to remain in the depot to await the arrival of the train, and the duty was imposed upon appellant, during said time, of providing a comfortable room for her and her children (see Elliott on Railways, vol. 4, p. 565, § 1641; T. & P. Ry. Co. v. Cornelius, 10 Tex. Civ. App. 125, 30 S. W. 720); and her expulsion was a violation of this right.

We think the exact question presented by this appeal has been decided in this state adversely to appellant’s contention in the case of Gulf, Colorado & Santa Fé Ry. Co. v. Coopwood, 96 S. W. 102, in which a writ of error was denied by the Supreme Court. There Mrs. Coopwood brought an action to recover damages suffered by her on account of the negligent treatment by the company’s servants of her invalid daughter, Miss Minnie. It appears that Mrs. Coopwood started from Wichita Falls to take her invalid daughter Minnie to San Angelo for her health. She was accompanied by Mrs. Over-ton, her widowed daughter, and a grandchild. When they reached Brownwood, Mrs. Coopwood purchased tickets for all of them, and Miss Minnie, who was unable to walk, was placed in a chair; that before the train started the brakeman and porter took up the chair, starting to put her into the baggage car, when she, as well as her mother, remonstrated, and finally, at the instance of a stranger, she was taken into the day coach, where she remained during their journey to San Angelo. En route Mrs. Coopwood informed the conductor of the illness of her daughter, and requested him to assist her in getting her daughter off the train immediately upon their arrival at San Angelo, so that they might secure a comfortable hotel or boarding house, which he promised to do; and notwithstanding this request was repeated by both the mother and daughter before reaching San Angelo, the conductor failed to give her any assistance upon arrival, and the car, after remaining at the depot for a few moments, was backed into the switch yards, where they were compelled to wait for about half an hour before obtaining any assistance. Finally an employé of the company procured a hack, and after driving to several different hotels she succeeded in securing a place to stay. Her daughter during this time was very sick and suffering intensely by reason of the neglect and delay. Notwithstanding there was no physical injury suffered by Mrs. Ooopwood, it was held on appeal that she was entitled to recover for mental anguish suffered by her on account of the negligent and wrongful treatment of her daughter. This ruling was based directly on the ground that being in charge of her daughter, and having paid her fare, there was an obligation on the part of the company to safely transport her and her sick daughter from Brownwood to San Angelo without injury, and to render her and her daughter such assistance on arrival as her physicial condition required, and in failing to do so they were guilty of negligence, for which she could recover.

Mrs. Overton likewise brought suit against the company, based on the same transaction, and recovered judgment, and the case was affirmed on appeal. See G., C. & S. F. Ry. Co. v. Overton, 107 S. W. 71. In that case, however, a writ of error was granted by the Supreme Court (see G., C. & S. F. v. Overton, 101 Tex. 583, 110 S. W. 736, 19 L. R. A. [N. S. 500), and the case reversed; the court holding that there can be no recovery for mental suffering resulting from sympathy for another’s mental or physical pain, and referring to the Ooopwood Case, said:

“The application for writ of error in that case was denied, because Mrs. Ooopwood was the mother of the injured party and in control of her at the time, and in exercising that control entered into a contract with the railroad company for the transportation of her invalid daughter from Brownwood to San Angelo. The acts of the employés of the railroad company and its negligence towards Miss Minnie was a direct violation of the contract with the mother; therefore this court held, in acting upon the application, that the railroad company owed to Mrs. Ooopwood the duty to carry her daughter to San Angelo with that care which was due to a passenger. Mrs. Coopwood’s injury resulted from a violation of this contract and a failure to perform that duty.”

See also the following authorities, which seem to sustain the holding in G., C. & S. F. v. Coopwood, supra: Railway Co. v. Anchonda, 68 S. W. 743; Railway Co. v. Gillette, 64 Tex. 536; I. & G. N. R. R. Co. v. Smith (Sup.) 1 S. W. 565; G., C. & S. F. Ry. Co. v. Green, 141 S. W. 341, in which writ of error was denied; Street on Personal Injuries, in Texas, § 383.

We therefore conclude that the court did not err in refusing the charge requested; and, finding no error in the proceedings of the trial court, its judgment is affirmed.
      ©o^>For other eases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McKETCHAM et al.
    (No. 5534.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1915.
    Rehearing Denied Jan. 19, 1916.)
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action between the St. Louis Southwestern-Railway Company of Texas and J. C. McKeteh-am and others. There was a judgment for the latter, and the former appeals. Affirmed.
    E. B. Perkins, of Dallas, and Scott & Ross, of Waco, for appellant.
   JENKINS, J.

This is a companion case to St. L. S. W. Ry. Co. of Texas v. J. J. Padgett et al., 181 S. W. 718, recently decided by this court; the facts being the same, except as to parties plaintiff. For reasons stated in that opinion, the judgment of the trial court in this cause is affirmed.

Affirmed.


author: PHILLIPS, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
    (No. 9049.)
    (Supreme Court of Texas.
    Jan. 12, 1916.)
    1. Commerce <&wkey;27 — “Interstate Commerce” —Mixed Commerce.
    Although a railway corporation has the power only to operate its trains within one state, where it by contract operates the trains of another railroad which originate outside the state, the operation of such trains is “interstate commerce.”
    LEd. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <§=^27.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)
    2. Commerce <&wkey;8 — Interstate Commerce — Regulation by States.
    Although Congress has the power to regulate commerce among the several states, _ there are certain duties the performance of which by common carriers the state may impose under its police power, notwithstanding such carriers engage in interstate commerce; the states not having surrendered that power to the federal government.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dee. Dig. <&wkey;>8.)
    3. Commerce &wkey;>8 — Interstate Commerce-Regulation by States.
    The state is not prohibited absolutely from regulating interstate commerce, but its powers are restricted only where Congress has exercised its power of regulation.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <5&wkey;8.] ■
    4. Commerce <&wkey;48 — Interstate Commerce-Regulation by States.
    A state enactment may be valid, though it incidentally affects interstate commerce, as where the enactment is an aid to such commerce, instead of a burden or interferes with it.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 36-44, 46; Dec. Dig. &wkey;48.)
    5. Commerce &wkey;>10 — Interstate Commerce-Regulation by States.
    There being no legislation of Congress on the subject, it is within the power of a state and of the state Railroad Commission thereof to require that trains, though they be of interstate character, be moved from terminii and junction points not more than 30 minutes behind the regular schedule, and on such schedule at all other stations, since, in so far as that requirement affects interstate commerce, it is in aid thereof; it being within the ffower of the state, in the absence of action by Congress, to exercise its police power in promoting the safe carriage of passengers on interstate trains.
    [Ed. Note. — For othe.r cases, see Commerce, Cent. Dig. § 8; Dec. Dig. &wkey;>10.)
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by the State against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment of the Court of Civil Appeals (167 S. W. 822) affirming a judgment for plaintiff, defendant brings error.
    Writ denied.
    Chas. C. Huff, of Dallas, Fiset, McLendon & Shelley, of Austin, and A. H. McKnight, of Dallas, for plaintiff in error.
   PHILLIPS, C. J.

The case involves the validity of what is commonly known as the “Thirty-Minute Order” of the Railroad Commission of Texas as applied to certain trains of the plaintiff in error, which, according to its claim, were interstate in character, and therefore not subject to the regulation. The question presented is a vital one, concerning in a large measure the powers of the Railroad Commission and important also to the railway carriers of the state; and it is preferable for this reason that the views of the court in its action upon the petition be briefly stated. The order of the Railroad Commission was issued under the authority of article 6552, Revised Statutes of 1911, and reads:

“Each and every railroad company operating a railroad in this state shall start its passenger trains from the points of origin in accordance with advertised schedule, and said trains, except from unavoidable accidents thereto en route, shall observe and conform to the published schedule as to arrival and departure at the several stations on the line: Provided, that trains may be held not to exceed thirty (30) minutes at origin or at junction points with other lines to make connection with trains on such other lines. If, at the expiration of said thirty minutes, connecting trains are in sight, ten minutes, in addition to said thirty minutes, will be allowed in which to make the connection. Where connecting trains arrive within the time above allowed a reasonable time,, in addition to that provided for, will be allowed for transfer of passengers, mail, express and baggage. Where connections are reliably reported to be more than thirty minutes late, no wait will be made.”

For its violation by the plaintiff in error in the operation of the trains in question, the suit was brought by the state for the recovery of penalties, a judgment for the state resulting, affirmed by the Court of Civil Appeals. 167 S. W. 822. The trains were through passenger trains from St. Louis and Kansas City, Mo., to points in Texas, operated by the Missouri, Kansas & Texas Railway Company to Denison, Tex., and from there to destination by the plaintiff in error under a contract with that company; and it appears from the proof that a considerable portion of their passenger traffic was interstate.

Because the trains were operated by the plaintiff in error altogether in Texas, and, as held, its want of authority as a corporation chartered in Texas to operate them beyond the state line, the honorable Court of Civil Appeals concluded in its opinion on rehearing that they were to be treated as purely intrastate trains, and upon that ground rested its decision. But under the proof that the traffic of the trains was largely interstate, we think they must be regarded in the case as instrumentalities of interstate commerce. Being employed in the movement of such traffic, it is difficult to perceive how they can be differently regarded, and we shall so treat them.

There is accordingly presented the simple question as to the power of the Railroad Commission to provide and enforce a regulation of this character as applied to trains employed in interstate commerce by railway companies operating in this state. While by tile federal Constitution Congress is empowered to regulate commerce with, foreign nations and among the several states, there remains in the states the power, distinct from any granted to the federal Government, to prescribe, within constitutional limitations, relative rights and duties of persons and corporations within their jurisdiction in the interest of the public convenience and for the public good. It is a power still valid and effectual, though its exercise may relate to subjects over which Congress possesses, but has not exerted, authority. It cannot be supposed that a sovereign state in the grant of the rights and privileges accorded by its laws to railway carriers is required to wholly surrender its authority over them simply because they may engage in interstate commerce. Nor is it to be assumed that such rights and privileges are extended merely for their benefit as interstate carriers, or only to subserve the interest of those making use of them for that character of traffic. There are certain duties whose performance by common carriers in the state the police power of the state may exact, notwithstanding their employment in interstate commerce; and that power is not nullified by the mere fact that they are so employed. Its valid exercise in relation to carriers engaged in such commerce, as well as their instrumentalities so used, is dependent upon other considerations ; and the principles which in the particular case determine the question are well established.

The Supreme Court of the United States, which is invested with the ultimate authority of determining these questions, recognizes three classes of cases respecting the power of the state over the subject of commerce. To use the language of one of its opinions, they are: (1) Those in which the power of the state is exclusive; (2) those in which the states may act in the absence of legislation by Congress; (3) those in which the action of Congress is exclusive, and the state cannot interfere at all. In relation to cases of the second class, it is the exercise by Congress of its power to regulate commerce, and not the mere existence of such power in Congress, which renders inconsistent the exercise of the same power by the state; and the state is free to exert its power where Congress has not acted. If the subject of the particular state enactment is national in its character, the absence of legislation by Congress amounts to an indication of its will that, as affected by such subject, commerce shall be left untrammeled, and the state regulation is of no effect. But it is equally true that an enactment of the state may be valid though it incidentally affects interstate commerce. The authority of the state to enact legislation which is in aid of such commerce, as distinguished from that which burdens or interferes with it, is likewise recognized. These are the principles of law which govern the present question, as clearly recognized and plainly declared in repeated adjudications of the United States Supreme Court upon the subject. Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962; Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105; New York, New Haven & Hartford Railroad Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853; Lake Shore & Michigan Southern Railway Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; Mobile County v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. 627, 41 L. Ed. 1064.

Applying them in the present case for the purpose of determining the validity of the Railroad Commission’s order in its relation to interstate trains, what is the result? It is clear, we think, that in its legislation with respect to interstate commerce Congress has not dealt with the subject-matter of the order. With the order producing no, conflict with any expression by Congress of its power over the subject, is the state, through its administrative agency established for the regulation of railroads operating within its limits, yet powerless to require their maintenance of the schedules of such of their trains as may have an interstate character, leaving those trains altogether free from any proper regulation of that nature? We do not think its authority is to be considered as so reduced. The order is very plainly not directed against interstate commerce. It is not an attempt to regulate commerce. It has to do merely with the manner of the operation of trains. It has no further object than to bring about dispatch and certainty in their operation as essentials of efficient service to the public. And it seeks to do no more than require that kind of operation merely within the limits of the state. The effect of its observance upon commerce, whether domestic or interstate, is purely incidental, since as a consequence of its obedience commerce will be affected as the result of only the ordinary operation of trains upon their schedule time. It is no more of a regulation of commerce, and in particular is it no more of a burden upon or interference with commerce in its effect, than familiar enactments requiring competency of train operatives as a means of affording safety to passengers and coemployes. It will hardly be denied that, in the absence of action by Congress, the police power of the state may be validly exercised to promote the safe carriage of passengers upon interstate trains. New York, New Haven & Hartford Railroad v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853. If so, by what authority is the state, under a similar condition, to be deprived of the exercise of its rightful powers for the furtherance of their prompt carriage by such trains ?

So far as it may affect interstate commerce, the order is a regulation in aid of commerce. It is difficult to conclude that a requirement whose natural effect upon commerce is to facilitate its prompt movement through the observance of train schedules and connections constitutes an interference with commerce, or in any just sense a burden upon it. There being no legislation by Congress which renders inconsistent such action by the state, the order of the Railroad Commission in such bearing as it has upon interstate commerce is accordingly a regulation which the state had the full authority to provide in the exercise of its sovereign powers, under which its right to reasonably prescribe the duties of railway companies within its limits is clear and undoubted.

Since the order in question as applied to interstate trains cannot, in our opinion, be regarded as an interference with interstate commerce, the case is to be clearly distinguished from those which hold as invalid regulations of a state requiring the stoppage of such trains where adequate local facilities had been provided.

The writ of error is refused.
      <&wkey;;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    COUNTS v. STATE.
    (No. 3862.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    1. Intoxicating Liquors &wkey;>236 — Unlawful Sale — Suittciency to? Evidence.
    Evidence, in a prosecution for pursuing the business or occupation of selling intoxicating liquor in prohibition territory, held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <i&wkey; 236.)
    2. Criminal Law &wkey;>1144 — Appeal — Presumption.
    Where the trial court overruled defendant’s motion to quash the whole jury panel because a witness was city marshal when he served as jury commissioner when the jurors were selected, the Court of Criminal Appeals, without any record showing of the evidence heard, must presume that the court’s action w.as correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]
    3. Jury <&wkey;55 — Exemptions—Waiver.
    Civil officers’ exemption from jury service is a personal privilege, to be claimed only by them, and which they may waive.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 261-263; Dec. Dig. &wkey;55.]
    4. Grand Jury &wkey;>5 — Jury <&wkey;38 — Competency — Civil Officers.
    Civil officers are not disqualified to serve either as petit or grand jurors.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 8-13, 15; Dec. Dig. &wkey;?5; Jury, Cent. Dig. § 243; Dec. Dig. <§x^>3S.]
    5. Criminal Law &wkey;>434 — Documentary Evidence — Records oe Express Company-Statute.
    Under Pen. Code 1911, art. 606, requiring an express agent, on the .arrival of intoxicating liquor into prohibition territory, to enter in a book the names of the consignor and consignee, the time of arrival, the character of the liquor, the time of 'delivery, and requiring the consignee to sign for it in person, and making the failure to keep such record an offense, the records of an express company, coming from the proper custody and kept in accordance with the statute, were admissible, in .a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, to show deliveries to the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023; Dec. Dig. &wkey;?434.j .
    6. Jury <&wkey;97 — Right to Jury Trial — Constitutional Provisions.
    Const, art. 1, § 10, guarantees in all criminal cases a trial by an impartial jury, and by article 1, § 15, declares that the right of trial by jury shall remain inviolate. Code Cr. Proc. 1911," art 22, declares that an accused cannot waive a jury. In a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory, a juror whom the defendant, having exhausted all his peremptory challenges, was forced to accept stated on his voir dire that he was a member of a law and order league obligated to aid in the prosecution and conviction for violating the local option law. Reid, that such juror was disqualified, so as to require a reversal.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 431-433, 435-437; Dec. Dig. &wkey;97.]
    Harper, J., dissenting.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Bob Counts was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Reversed and remanded.
    T. C. Hutchings, of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of pursuing the business or occupation of selling intoxicating liquor in prohibition territory, and his punishment assessed at the lowest.

Joe Long, one of the parties to whom the indictment charged appellant made a sale of whisky, testified, in substance, that he,bought a pint of whisky from appellant and paid him a dollar therefor about the time alleged in the indictment, and at the time appellant told him if he wanted any more whisky to come back to him; that he could sell it to him at any time he wanted it. Yan Thompson, another person to whom such sale was alleged, testified that he bought a pint of whisky from appellant about May 1, 1913, the date alleged, and paid him a dollar for it; that he had the whisky with him in his hind pocket; that he went to him to get the whisky because he knew he had it and sold it; that he had asked him lots of times before that if he wanted some whisky, and that in the conversations before that he had told him he had whisky and wanted to know if he wanted to buy any, or knew anybody who did. Grant Pounders testified that on one occasion, about the time alleged in the indictment, appellant came to him and told him there was a package for him in the express office; that he, the witness, had ordered no whisky from any one and told appellant he had no package there. Appellant urged him, and at his instance went to the express office and signed for the package, but did not take it, but let appellant have it. He did not know what was in the package. J. A. Cooper, the sheriff, testified that he saw appellant deliver a couple of pints of whisky, about the time alleged in the indictment, to two persons, naming them; that, after appellant was indicted, he arrested him and put him under bond; that he stayed around until the last term of court and left during the court. His bond was forfeited, and about a week after the court adjourned appellant came to town and gave up. W. D. Sanders, the city marshal of Mt. Pleasant, testified: That he saw appellant frequently during 1913, and saw him in possession of whisky often. He would see him in town lots of times getting whisky in boxes, taking it out and signing for it. Sometimes he would send it out in the country. That he saw him get flat boxes marked, “24 pints, intoxicating whisky” — he did not know how often, but several times, with that kind of package in his possession, and then he would see him on the streets, when he could tell he had three or four pints of whis-ky in his pockets. Wl. Y. Henson testified that he was the agent of the Wells Fargo Express Company at Mt. Pleasant, and had been there about four months. He produced and identified the record book of said express company, which showed shipments of whisky coming by express to that point during the first five months of 1913; that he did not keep the records himself and made none of the entries, but knew they were correctly kept; that these records were kept at that office and never sent away. These records, which were introduced in evidence, showed various shipments of considerable quantities of intoxicating liquors to appellant, from various liquor dealers in other places in the state, from the last of January to about the first of July, 1913, and seemed to show receipt thereof by him. These various shipments aggregated 40 quarts of whisky and one case of beer. Appellant did not testify and introduced no witness nor testimony in his behalf. The evidence was amply sufficient to sustain the verdict, and the court committed no error in refusing appellant’s requested charge peremptorily requiring the jury to acquit.

One of the three jury commissioners, who was appointed by the district judge at the term of court six months prior to the term at which this trial occurred, was said city marshal. This was developed when appellant cross-examined him as a witness on this trial. Thereupon he sought to withdraw his announcement of ready, and made a motion to quash the whole jury panel, because said witness was city marshal at the time he served as jury commissioner when the jurors were selected. The court heard evidence on this at the time, and overruled the motion. What that evidence was is in no way disclosed by the record. We must presume the court’s action was sustained thereby, and that his action was correct. The statute in no way forbids such an officer to serve as jury commissioner, and he would not, under the law, be disqualified as such.

It has many times been held by this court that civil officers’ exemptions from jury service is a personal privilege to be claimed only by them, and that they can waive it, and that they are not disqualified because they are civil officers to serve either as petit or grand jurors. Burns v. State, 12 Tex. App. 278; Owens v. State, 25 Tex. App. 555, 8 S. W. 658; Edgar v. State, 59 Tex. Cr. R. 252, 127 S. W. 1053; Trinkle v. State, 59 Tex. Cr. R. 257, 127 S. W. 1060; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583; Mingo v. State, 61 Tex. Cr. R. 14, 133 S. W. 882. The court committed no error in overruling his motion to withdraw his announcement, nor in overruling his motion to quash the jury panel.

Appellant objected to the testimony of Henson and the introduction of said express company records in evidence on various grounds, claiming that the records and the entries thereof were not sufficiently identified, and in effect that it was necessary to produce the agent who made the entries and have him to testify thereto, and to the correctness thereof and of appellant’s receipt of said liquors. Our statute (article 606, P. C.) requires, and makes it an offense not to comply, for every shipper of intoxicating liquor into prohibition territory to place on such package, in a conspicuous place in plain letters, the words, “Intoxicating Liquor,” the character and quantity thereof, the place whence shipped, its destination, the name of the consignor and the consignee, and also makes it-an offense for any express company to receive intoxicating liquor for shipment unless so labeled. It also requires the express agent, upon the arrival of such liquor at its place of destination, to enter in a book kept for that purpose the names of the consignor and consignee, the exact time of arrival, the place whence shipped, quantity, and character of such liquor, as shown on the package, and the exact time delivered to the consignee, and prohibits the delivery thereof to any other than the consignee in person, and requires the consignee in person to sign for it when delivered, and makes it an offense to fail or refuse to comply with all these requisites. Such book at the destination of the liquor is, by said statute, expressly made a public, or at least a quasi-public, record. It is admissible in evidence, in a case of this character, when it is shown, as in this case, that it is unquestionably the record of the express company so required to be kept, and kept, and the proper entries made therein, the same as any other public record, coming from the proper custody which is required by law to be kept, would be, and. it is not necessary for the agent who made the entries to be present and testify thereto. In this case there can be no doubt from the testimony that this record book came from the proper custody, was a permanent record in the office of the express company at Mt. Pleasant, was kept correctly and in accordance with our statute; and, as we can see, there is no sound reason why it was not admissible, proven up as it was in this case. Stephens v. State, 63 Tex. Cr. R. 393, 139 S. W. 1141; Atkinson v. State, 149 S. W. 114; Wilson v. State, 154 S. W. 571; Miller v. State, 72 Tex. Cr. R. 151, 161 S. W. 128.

The record shows the jurors were examined on their voir dire as to their qualification as jurors. The bill does not disclose what this full examination developed. We must therefore assume that every other requisite prescribed by the statute to show their qualification was completely met, unless what is stated in the bill shows the reverse. The bill quotes what five of the panel swore on this point, and the judge approved the bill without any qualification or explanation. We quote what they swore:

“There was organized a few days ago, in the town of Mt. Pleasant, what is known as the ‘Law and Order League,’ which was organized, during this term of this court for the purpose of ‘cleaning up’ the town of Mt. Pleasant and Titus county, and we and each of us joined same, and by joining said organization we promised ana obligated ourselves to use all efforts within our power to secure testimony in order that indictments might be found against persons charged with violating the laws of the state of Texas, and especially the local option law; and further promised and obligated ourselves to aid and assist in the prosecution of persons charged with violations of the laws of the state of Texas, especially the local option law, and to do all within our power to secure convictions of persons so charged; and further contributed and promised to contribute money to be used for the purpose of securing testimony against persons charged and to be charged with violations of said laws, and to be used in securing convictions in cases wherein persons are charged with violating the law. The membership of said Law and Order League consists of more than 100 members, ourselves included, have contributed and promised to contribute money for the above and foregoing purposes, and we have organized this Law and Order League for the purpose of working together jointly to bring about the above ends and to assist and aid the officers in every way possible to secure convictions in all cases wherein persons are charged with violating the law, especially the local option law, and we are now ready and willing to make good our promises, and ready and willing to do all in our power to secure convictions and to do everything possible to aid and assist the officers in securing testimony and to aid and assist in cleaning up the town of Mt. Pleasant and Titus county.”

If this bad shown only that they had organized and were members of said league for the general purposes stated, as in the case of Deadweyler v. State, 57 Tex. Cr. R. 63, 121 S. W. 863, they would not have been disqualified. The general object of the league and the members thereof, to aid the officers in the enforcement of the laws, and even especially the local option law, and to work together for that purpose and to “clean up” their town and county of crime, is most commendable. And to bind themselves to go as far as their testimony shows they did, and to do all they bound themselves to do, is also commendable. But the question is, did that disqualify them to sit as jurors in this case? We will specifically state what they swore. Each swore:

In joining said league, I promised and obligated myself to use all efforts in my power to secure testimony to have indictments found against persons charged with violating the local option laws, and further promised and obligated myself to aid and assist in, the prosecution of persons so charged, “and to do all in my power to secure convictions of persons so charged, and further contributed and promised to contribute money * * * to be used in securing convictions in cases where persons are so charged," and to work together to bring about these ends, and “I am now ready and mlling to make good my promises, and ready and willing to do all in my power to secure convictions. * * * ”

Our Constitution (section 10, art. 1) guarantees: “In all criminal prosecutions the accused shall have a trial by an impartial jury.” The right of trial by such a jury “shall remain inviolate.” Section 15, art. 1. While an accused can waive almost everything else in a criminal felony case, he cannot waive a jury. C. C. P. art. 22.

The bill further shows that he exhausted all his peremptory challenges, and one of said jurors was forced on him and sat as a juror on this trial. We think it clear said juror was disqualified, which results in the reversal of this case.

Reversed and remanded.

HARPER, J.

(dissenting). I think the case should be affirmed. Citizens who join an organization to suppress crime, and agree to do all in their power to see that the laws are enforced, are not generally that class of citizens who would swear falsely on their voir dire examination. They necessarily, in answer to the statutory questions, must have answered that they had no prejudice against appellant; had no opinion as to his guilt or innocence in this case, and that they would render a verdict in accordance with the evidence adduced on the trial and the law as given them in charge by the court. If they are disqualified in this ease, then they are disqualified to sit as jurors in every criminal ease, that may be prosecuted in Titus county. I think a juror is qualified unless he has an opinion as to the guilt or innocence of the person on trial, or has bias or prejudice in favor of or against the defendant. That they were willing to do all in their power to secure the conviction of men charged with crime does not, to my mind, suggest that they would commit perjury in order to get on the jury.
      (S^sKor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    DAY v. STATE.
    (No. 3754.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    On Motion for Rehearing, Dec. 22, 1915.
    Appellant’s Rehearing Denied Jan. 19, 1916.)
    Ceiminal Law <&wkey;1099 — Appeai^-Record.
    Where a stenographer was employed by the county at the instance of the county judge, and defendant’s affidavits showed his presentation of the statement of facts to the county judge and county attorney, with his bill of exceptions, on the last day on which it could be approved and filed, and that it was more than 20 days before defendant and the county attorney agreed as to testimony to be included in the statement of facts, and that defendant relied on the promise of the county attorney to present it to the judge, and the affidavit of the county judge showed defendant’s presentation of the statement of facts to him, defendant’s consultation with the county attorney, and that afterwards no statement of facts was ever presented to him, either by defendant or the county attorney, though he was ready and willing to have signed an agreed statement of facts, held that defendant was not deprived of a record in the cause, any negligence of the county attorney in not presenting the statement to the judge being the negligence of the defendant.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. &wkey;> 1099.]
    Appeal from Collingsworth County Court; A. C. Nicholson, Judge.
    Eleteher Day was convicted of using abusive, vulgar, and indecent language in a public place, in a manner calculated to disturb the inhabitants, and he appeals.
    Affirmed.
    R. H. Templeton, of Wellington, and Ramsey, Black & Ramsey, of Austin, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of using abusive, vulgar, and indecent language in a public place, in a manner calculated to disturb the inhabitants, and his punishment assessed at a fine of $1.

The statement of facts on file bears only the signature of appellant’s counsel, and, of course, cannot be considered. Affidavits have been filed pro and con as to whether or not appellant’s counsel have been guilty of such negligence as to deprive him of the right to have the case reversed because appellant has been deprived of a statement of facts. It appears that this case was considered of so much importance appellant asked that a stenographer be appointed to report the testimony, and one was appointed by the court. A 20-day order was entered in which a statement of facts could be filed. .The stenographer’s certificate shows that appellant requested and paid her to prepare both a record in question and answer form and narrative, and this she did within II days from the day of adjournment of court. Both these records are before us, signed alone by appellant’s counsel. As hereinbefore stated, there is a conflict in the affidavits on file; but, inasmuch as it appears that appellant took the precaution of having a stenographer appointed in order to have the case before us on a correct statement of facts, and appellant paid her to make out both a narrative statement and a statement in question and answer form, so that it would be easy to agree on a correct statement of the evidence, that same was made out in ample time, and that due diligence in the case is shown to have been exercised by appellant’s counsel, we are of the opinion he is entitled to have the ease reversed and remanded, because he has been deprived of a record in the cause.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing in this case, accompanied by the affidavit of the county judge and others, in which it is shown we were in error in several conclusions arrived at in the former opinion. In the first place, we said that appellant had employed a stenographer in the case. This was our conclusion, from the fact the law does not provide for a stenographer in county court. But the affidavits conclusively show that the stenographer was employed by the county at the instance of the county judge. Appellant was in no way responsible for the statement contained in the original opinion that he had employed one to report the case; this being the conclusion of the writer that a stenographer had reported the case, when the law provided none. And the opinion, in so far as it refers to this matter, does not correctly state the facts, but through the fault of the writer alone. As to whether diligence was used, there is considerable conflict in the affidavits of the county attorney and appellant’s counsel on file, and we shall not seek to reconcile the conflict. Appellant’s affidavit shows that he presented the statement of facts to the county judge and county attorney on the same day that he filed his bill of exceptions. The bills of exception were filed July 9th. The term of court at which appellant was tried adjourned June 19th, thus making it 20 days from the adjournment of court when the statement of facts was presented to the county attorney and county judge. This was the last day on which it could be approved and filed. Appellant’s affidavit further shows that he and the county attorney took the statement of facts to consult over it, and that the county attorney was not satisfied with the evidence of Herbert Dysart and P. W. Myers; that it was several days after this before appellant and the county attorney agreed on the evidence of Myers and Dysart, making it more than 20 days after the adjournment of court before an agreement was reached. Accept all these facts as true, this would not be within the time allowed by law. Had a statement of facts ever been approved by the county judge we would be inclined to consider it under the showing made, but, as the statement of facts has never been approved by the judge, under no rule of law can we consider it. The county judge sends an affidavit, in which he swears that when defendant’s counsel presented the statement of facts to him defendant’s counsel had never submitted it to the county attorney; that he asked him to take it to the county attorney and see if they could not agree, and, if they could not, he would at once prepare and file a statement of facts; that counsel for appellant agreed to this, and went to consult with the. county attorney ; that thereafter no statement of facts was ever presented to him by either appellant’s counsel or the county attorney; that he was ready and willing to have signed an agreed statement of facts, or, in the event no agreement was reached, to have prepared one upon request to do so. The affidavit of appellant’s counsel does not contend that he thereafter presented to the judge a statement of facts, but says he relied on the promise of the county attorney to present it to the judge. This is where one of the conflicts in the affidavits comes in, but it is unnecessary to pass on it, as appellant could not rely on some one else to do for him what the law required him to do. He should have presented it to the judge, and, if he relied on some one else to do this, and they failed to do so, the negligence would be chargeable to him.

Upon such a state of facts, we were in error in reversing the case, and the motion for rehearing is granted, and the judgment affirmed.
      <S=pJ7or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    HORN v. STATE.
    (No. 3880.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    Infants <&wkey;16 — Delinquency—Appeal.
    One declared to be a delinquent child does not have the right of appeal from such a judgment, and the appellate court cannot acquire jurisdiction of an attempted appeal.
    I Ed. Note. — Eor other cases, see Infants, Cent. Dig. § 16; Dec. Dig. iS&wkey;16.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Arthur Horn was tried before the court as a delinquent child, and, being declared delinquent, appeals.
    Appeal dismissed.
    Mays & Mays, of Et. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was tried before the court as a delinquent child, and sent to the State Institution for Training Juveniles at Gatesville.

There is a matter or two that might be important for decision, but under the case of Ex parte Bartee, 174 S. W. at page 1057, it was held that a party would not have the right of appeal from a judgment adjudging him guilty as a delinquent child.

Under that decision this court has not acquired jurisdiction of this appeal, and it is therefore dismissed.


author: PRENDERGAST, P. J.

text:
    WHEAT v. STATE.
    (No. 3881.)
    (Court Of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    Bail <&wkey;64 — Recognizance — Defective Bond — Effect.
    Where the recognizance is fatally defective, the appeal must be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. &wkey;64.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Fred Wheat was convicted of selling liquor in nonprohibition territory without a license, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for selling liquor in non-prohibition territory without any license.

The recognizance is fatally defective, as has many times been held by this court. It will therefore be necessary to dismiss this appeal.

However, we might say that there is neither a bill of exception nor a statement of facts, and no question raised which can be reviewed in the absence of these. It would therefore seem useless to correct the recognizance, as the case shown by this record would necessarily be affirmed if a correct recognizance had been entered into.

The appeal is dismissed.


text:
    BREAKWELL v. STATE.
    (No. 3873.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    Criminal Law <&wkey;1087 — Reookd on Appeal —Recognizance—Sufficiency.
    Where the only notice of appeal in the record is the recital in the recognizance of the conditions that the defendant should appear to abide the judgment of the Court of Criminal Appeals, the record was insufficient to confer jurisdiction on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781, 2794; Dec. Dig. &wkey;10S7.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    J. Breakwell was convicted of being a vagrant, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of being a vagrant, and his punishment assessed at a fine of $200.

No motion for a new trial accompanies the record. The record contains no bills of exception, nor a statement of facts. The only notice of appeal contained in the record is recited in the rec'ognizance, the conditions of which are that he shall appear before the court from day to day and from term to term in order to abide the judgment of the Court of Criminal Appeals of the state of Texas in this case. This recital has been held to be insufficient to confer jurisdiction on this court.

The appeal is therefore dismissed.
      (§=AEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILEY v. STATE.
    (No. 3879.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    Criminal Law <&wkey;1092 — Appeal—Bill op Exceptions — Filing-.
    On bills of exceptions to the overruling of the motion for a new trial embodying facts in connection with an alleged misconduct of the jury, filed two weeks after the court adjourned, the alleged misconduct will not be reviewed; as statements of facts _ with reference to matters occurring on a motion for new trial must be approved and filed before the adjournment of court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, 2919; Dec. Dig. <&wkey;1092.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Elias Wiley was convicted of murder, and he appeals.
    Affirmed.
    A. T. McKinney, Jr., of Huntsville, for appellant. J. A. Platt, Dist. Atty., of Grove-ton, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder; his punishment being assessed at five years’ confinement in the penitentiary.

Two propositions are submitted for reversal: First, want of sufficient evidence to sustain the conviction; and, second, misconduct of the jury. The misconduct of the jury would present a serious question if embodied in the record in such manner as to be considered. Court adjourned on 18th of October; motion for new trial was overruled October 1st; sentence was passed on October 2d; bills of exceptions to the action of the court overruling motion for new trial and embodying the facts in connection with the alleged misconduct of the jury were filed November 3d. This was about two weeks after court adjourned. The authorities seem to be harmonious that the statement of facts with reference to matters occurring on motion for new trial must be approved and filed before the adjournment of court. This was not done in this case until fully two weeks after adjournment of court. No reason is shown why said evidence was not filed earlier. Following the unbroken line of authorities, this question will not be reviewed, some of which are here cited. Lucas v. State, 155 S. W. 527; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 980; Bailey v. State, 144 S. W. 996; Johnson v. State, 71 Tex. Cr. R. 620, 160 S. W. 695; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116.

As to the sufficiency of the evidence, it may be stated there is conflict as is usual in homicide cases of this character. The evidence for the state, we think, is sufficient to sustain the verdict of the jury. It would serve no useful purpose to give the substance of the testimony or enter into a detailed statement of it.

As the record presents the case, we are of opinion the judgment should be affirmed; and it is accordingly so ordered.


text:
    LEE v. STATE.
    (No. 3804.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    Rehearing Denied Jan. 19, 1916.)
    Ceiminal Law <&wkey;871 — Verdict—Form.
    In a criminal prosecution, where the court submitted three forms of verdict — one if the jury found defendant not guilty, a second if they found her guilty, and recommended a suspension of sentence, and a third if they found her, guilty and recommended that sentence be not suspended — the filling out the blank in the latter form signed by the foreman, and received by the court without exception, was a good verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2079-2081; Dec. Dig. &wkey;S71.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Albirda Lee was convicted of assault with intent to murder, and she appeals.
    Affirmed.
    McLean, Scott & McLean, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault with intent to murder, and her punishment assessed at two years’ confinement in the state penitentiary.

The court, in submitting his charge to the jury, submitted also three forms of verdict: One in case the jury found appellant not guilty; one in case they found her guilty, and recommended a suspension of sentence, and the other if they found appellant guilty and recommended that the sentence be not suspended. Instead of writing out their verdict in full, the jury filled out the blanks in this latter form, and the foreman signed his name thereto. No exception was reserved at the time the verdict was received by the court, but in the motion for a new trial it is contended this amounted to no verdict Such contention cannot be sustained.

The judgment is affirmed.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes