author: HENDRICKS, J.

text:
    NEWSOM v. LANGFORD.
    (No. 725.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 27, 1915.
    On Motion for Rehearing, March 27, 1915.)
    1.Evidence <®=345 — Public Recobds — Copies — Authentication.
    Under Rev. St. U. S. § 882 (U. S. Comp. St. 1913, § 1494), providing that copies of any record in any of the departments authenticated under the seal of the department shall be admitted in evidence equally with the original, and Act Cong. July 26, 1892, c. 256, § 3, 27 Stat. 272 (U. S. Comp. St. 1913, § 720), providing for certified copies of any records belonging to the files of the Commissioner of Indian Affairs, authenticated by the seal and certified by him or some officer acting in his stead, á copy of a part of the approved roll of a Seminole freedman, authorized by Act Cong. May 27, 190S, c. 199, 35 Stat. 313, § 3, declaring that the rolls of citizenship and o-f freedmen of the Five Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence, certified by the Commissioner of the Five Civilized Tribes, but not authenticated by any seal, is inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1302-1314, 1331-1360; Dec. Dig. <§=345.]
    2. Indians <§=13— Enrollment Records — Conclusiveness.
    Under Act Cong. May 27, 1908, c. 199, § 3, 35 Stat. 313, providing that the enrollment records of the Commissioner of the Five Civilized Tribes shall be conclusive evidence as to the age of any enrolled citizen or freedman, the testimony of an enrolled freedman as to his age 7ieM incompetent.
    [Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. ®=13.]
    3. Evidence <@= 348 — Records— Certified Copies.
    Under Rev. St. U. S. § 906 (U. S. Comp. St. 1913, § 1520), providing for the exemplification of records of another state, and declaring that the exemplifications properly authenticated shall be given such faith and credit as they have in the state from which they are taken, copies of deeds recorded in a sister state not authenticated as required by law, are inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1301-1383; Dec. Dig. 0=5348.]
    4. Evidence 0=383 — Records of Sister States — Evidence—Effect.
    The court, admitting in evidence copies of records of a sister state duly authenticated, cannot give effect to the records accorded to them by the laws of the sister state, unless the laws are proved; for the court cannot judicially know the legal effect of the records in the sister state.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. .§§ 1660-1677; Dec. Dig. 0=383.]
    5. Indians <®=15 — Minor Allottees — Conveyances — 'Validity.
    Act Cong. May 27, 1908, c. 199, § 6, 35 Stat. 318, providing that persons and property of minor allottees, except as otherwise provided by law, are subject to the control and jurisdiction of the probate court of Oklahoma, restricts the alienation of land by minor allottees, which restriction can only be removed by the probate court, and a deed executed by a minor allottee is void.
    [Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. ⅞= 15.]
    6. Covenants <®=22 — Wiiat Law Governs.
    The law of the state where land conveyed by deed is situated governs the obligation assumed by the grantor.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 21, 229; Dec. Dig. <®=22.]
    7. Covenants ⅞=10 — Warranties — Statutory Provisions.
    Under Comp. Laws Okl. 1909, § 1202, declaring that a warranty deed made in substantial compliance with the act shall convey the whole interest of the grantor, and shall be deemed a covenant that the grantor is legally seised of the estate in fee simple, and has good right to convey, and that the premises are clear of incumbrances, a general warranty deed made in compliance with the law of Oklahoma contains, by operation of law, a warranty of seisin, as well as a warranty of full power to convey, and the covenants, if broken, are broken when made, and an actual eviction is unnecessary to consummate a breach.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 8; Dee. Dig. <§=10.]

      8. Evidence ⅞=⅛05 — Declarations ox Agent — Admissibility.
    Testimony of witnesses as to declarations of an agent of admissions of his principal is admissible as to the weight to be given testi-mon3' of the principal.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. <S^2Gsj.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by W. L. Langford against J. C. Newsom. Front a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Alexander, Power & Ridgway, of Ft. Worth, and S. A. Bryant, of Memphis, for appellant. Gilbert C. Storms, of Kerrville, and H. D. Spencer, of Memphis, for appellee.
   HENDRICKS, J.

This cause arose as follows: On the 20th day of August, 1910, Thomas II. Thomas, a freedman of the Seminole Tribe of Indians of Oklahoma, and an allottee of land under the United States laws, conveyed to W. N. Stokes his allotment situated in Seminole county, Okl. J. C. Newsom, of Hall county, Tex., obtained the purported title of said land through mesne conveyances, and upon the 18th day of October, 1911, executed a general warranty deed to the appellee, W. L. Langford, and the latter, alleging a total failure of title, instituted this suit against the appellant upon the general warranty; also alleging certain fraudulent representation.-, which, on account of the action of the trial judge with reference to the condition of the title, became immaterial upon this appeal. The appellant transferred a certain stock of dry goods in consideration of the deed to him by Newsom, of the land; and relative to that part of the cause of action upon the warranty, the age of the freedman, Thomas H. Thomas, the allottee of the land, and the original grantor of the same, became a material subject of inquiry.

For the purpose of proving the age and minority of Thomas H. Thomas, the following document was permitted in evidence by the trial court:

“Department of the Interior,
“Commissioner of the Five Civilized Tribes.
“Seminole Roll Freedman.
No. Name. <?
2597 Thomas, Thos. H. 7
s s M
⅞ Tribal Enroll¡S ment Band. 1897 Dosar Barkus
“No. 102. Census card No. 803.
“This is to certify that I am, the officer having custody of the approved roll of Seminole freedmen, and that the above and foregoing is a true and correct copy of that portion of said roll appearing at No. 2597, enrolled as of July, 1898, P. O., Sasakwa, Oklahoma.
“J. G. Wright,
“Commissioner to the Five Civilized Tribes. “C. II. Drewe, Clerk,
“Muskogee, Oklahoma, December 22, 1913.”

The appellant complains that the purported certified copy was not authenticated, as required by law, to admit it in evidence, that said copy was secondary evidence, and that the original roll would have been the better testimony. Act Cong. May 27, 1908, c. 199 (35 Statutes at Large, p. 312) § 3, provides:

“That the rolls of citizenship and of freedmen of the five civilized tribes approved by the Secretary of the Interior shall be conclusive evidence as to the quantum of Indian blood of any enrolled citizen or freedman of said tribes and of no other persons to determine questions arising under this act and the enrollment records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman.”

The principal contention of appellant is that the document lacks an official seal; that the enrollment records indicated in the congressional act being conclusive evidence of the age of freedmen is a new rule of evidence, and that a party seeking the advantage of said statute should be held to the strictest compliance with the statutory rule of evidence; that this particular statute, referable to the question of age, makes the enrollment records, and not copies of the same, the conclusive evidence as to the age of such persons; and that, as to certified copies, we are remitted to either section 882 of the federal statutes (volume 3, Annotated Federal Statutes, p. 26) or to section 3 of an act of Congress of July 26, 1892 (volume 3, Annotated Federal Statutes, p. 338).

The former section (882) provides that:

“Copies of any books, records, papers or documents in any of the * * * departments, authenticated under the seals of such departments, respectively, shall be admitted in evidence equally with the originals thereof.”

Section 3 provides for certified copies of any records belonging to the files of the Commissioner of Indian Affairs, authenticated by the seal and certified to by such officer, or some officer acting in his stead, that such copies shall be evidence equally with the originals.

We think the contention of appellant is sound, and that the court erred in admitting ■the particular document in evidence. We are not referred to any statute, except the general statutes mentioned, relative to the introduction of certified copies as evidence .which would vitalize a purported copy of the Commissioner and elevate the same to. the dignity of original testimony. Without proper authentication, unless there is some statute that would make a copy, without more, under the purported signature of the Commissioner to the Five Civilized Tribes, permissible evidence, equal to the original records, we are unable to understand how the same could rise to the dignity of original testimony. The seal in this instance, whichever statute would apply, forms a part of the authentication. In the case of Smith v. U. S., 5 Pet. 300, 8 L. Ed. 133, Mr. Justice McLean used the following language:

“It is the certificate of the auditor and the seal of the department which make the transcript evidence. If either be omitted, whatever the transcript may purport upon its face, it is not evidence. Where copies are made evidence by statute, the mode of authentication required must be strictly pursued. The Legislature may establish new rules of evidence in derogation of the common law, but the judicial power is limited to the rule laid down.”'

He further said:

“The objection that the signature of the Secretary of the Treasury was signed by his chief clerk, seems not to be important. It is the seal which authenticates the transcript, and not the signature of the Secretary.”

While the result of the ease cited and quoted from by us is a little difficult to understand, however, the court had under consideration an act which required a certain transcript to be certified to by certain officers, “and authenticated under the seal of the department.” There was a division of the court on certain questions, and, though the language used may not, strictly speaking, be a part of the decision of the court, we think the enunciation is a correct principle.

Section 906 of the Revised Statutes of the United States, which provides for the exemplification of the records of other states, not pertaining to a court, prescribes that the same shall be admitted in evidence in any state or territory by the attestation of the keeper of the records, and the seal of his office annexed, together with a certificate of the Secretary of State that said attestation is in due form and by the proper officer.

In the case of Morton v. Smith, 44 S. W. 683,, where certain documents were certified to by the official custodian of the records in a foreign state, but without any seal to the certificate, Chief Justice James remarked that he was unable to conceive upon what principle the same were admitted. It is true that there is a scarcity of authority directly applicable to the particular question involved, except that there are several authorities where a seal by the proper' officer has been omitted, relative to a certification and authentication of a foreign judgment under the full faith and credit clause of the federal' law, holding that the seal is indispensable to a proper authentication. As to the seal, the case of Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 Pac. 995, is to-the same effect.

Appellee cites the case of Starr v. U. S., 164 U. S. 627, 17 Sup. Ct. 223, 41 L. Ed. 577, wherein the Supreme Court of the United States spoke of a certain warrant of arrest as being admissible in testimony without the seal of the United States Commissioner. The question of the lack of a seal was really not involved in that case, but was involved in the ease of Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841, where the conviction -in the United States court of the same defendant was reversed. In the latter cause the Supreme Court of the United States discussed the. question of warrants relative to seals thereupon, making an extended research into the common law upon that subject, and held in that cause .that an objection addressed solely to the want of the seal was untenable. A reading of that case exhibits the inapplicability of the principle applied Ijy the Supreme Court to the character of document questioned in this record. However, appellant cites the case of Belford-Clark & Co. v. Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 520, wherein a copy of a certain letter, referable to a certain copyright, certified to as having been received by the Librarian of Congress, was declared by the Supreme Court of the United States as competent evidence, although the certificate of the officer was not under seal. The judgment of the trial court in that cause, under review by the Supreme Court of the United States, was based entirely, if we interpret the decision correctly, upon the previous findings of the referee or master, without any exceptions to the same in the record under consideration by the Supreme Court, and without assignments based upon exceptions. The court did say:

“We are of opinion that the certificate of the Librarian of Congress, * * * printed in the record, ⅜ * * was competent evidence, although the certificate was not under seal.”

There were other documents under the hand and seal of the Librarian introduced in that cause relative to the copyright, which we presume were the same signature as the one appended to the unsealed instrument. We cannot infer that the court would hold, as a principle of evidence, that an ex parte instrument purporting to be a copy of a record, without proof that it was an official act, would prove itself, and prove the original record.

The purported document is headed, “The Department of the Interior.” The Commissioner of the Five Civilized Tribes may be, of course, the proper custodian of the enrollment records. In the case of Ballew v. U. S., 160 U. S. 187, 16 Sup. Ct. 263, 40 L. Ed. 388, Justice White, of the Supreme Court of the United States, said that:

“The records of the Pension Olfice constitute part of the records of the Department of the Interior, of which executive department the Pension Office is but a constituent”

—holding that the certificates, we presume of the pension officer, and of the Secretary of the Interior, as being in substantial compliance with the statute, probably pointing the way to a correct certificate.

Again, it will be noted that the certificate is a true and correct copy of the “Approval (Approved) Roll” oí Seminole freedmen, and is not a certificate of the “Enrollment Record,” which latter is the record prescribed by the congressional act as the one conclusive as to age; the former conclusive as to the quantum of the blood of the party enrolled. Chief Justice Kane, of the Supreme Court of Oklahoma, in the case of Scott v. Brakel, 143 Pac. 512, presents an interesting summary oí the congressional history of the rolls, drawing a marked distinction between the “Approved Rolls” and the “Enrollment Records,” and says that such a distinction was clearly recognized by Congress in the progress of the legislation on the subject. While the objection in this cause as to better testimony refers to the Approved Rolls as better testimony, and may not be sufficient to reach this question, however, following the logic of Justice Kane in the case cited, on account of the difference in the rolls, a copy from the Approved Rolls is not competent evidence as to age; the enrollment records may be in another office.

In the case of Gilbert v. Brown, 144 Pac. 359, the Supreme Court of Oklahoma held that the testimony of the custodian of the rolls was incompetent to prove the records, as to the age of a minor allottee, saying:

“This court having heretofore held that the records are conclusive as to the age of an al-lottee, such records are the best evidence, ⅜ * ⅜ in the absence of a showing that the same were lost or destroyed”

—reversing the case on account of the insufficiency of the testimony.

Neither do we think, for the reason adduced, that the testimony of Thomas H. Thomas, as applied to this record, as to his own age, is competent.

In the case of Campbell v. McSpadden, 143 Pac. 1138, the Supreme Court of Oklahoma, in construing the federal act, again drew the distinction between the two rolls as to evidence of the quantum of blood and as to the age of the allottee, saying:

“It is evident from the record that the jury regarded this copy of the rolls, together possibly with some oral testimony that was received, as conclusive evidence that the allottee attained his majority on September 1, 1908, and that all conveyances executed prior to such date were void, and those made subsequently to such date were valid.”

The court further saying:

“It follows, therefore, that the conclusion of the jury was reached upon evidence which Congress did not intend should be regarded as conclusive of the age of allottees.”

We think the court must have meant that it was not testimony for any purpose in the face of the Statute; at least that is our opinion as to the interpretation of the law.

Appellee introduced in evidence other deeds of Thomas H. Thomas purporting to convey his allotted land, executed subsequent to the deed to Stokes, through which latter deed the chain of title in controversy here is deraigned. If the document in this record is equivalent to the status of the enrollment record as to the age of Thomas H. Thomas, the negro was not 21 years of age, according to our computation, when he deeded the land subsequently to Holman Jackson, but had attained his majority when he conveyed to May Jackson; the same land in controversy, who, appellee says, is the wife of Holman Jackson, which latter fact is not shown by the record. However, according to this record, if the document from the approved rolls speaks the same age as the enrollment record, May Jackson has the title to the property. Appellee introduced the Jackson title, also another deed to one Fleet, executed by the freedman, subsequent to the other conveyances, and the appellant objects to all the certified copies because the original deeds were the better testimony; that there was no affidavit of loss of, or of inability to procure, the originals; and that said copies were not authenticated, as required by law, to admit them in evidence.

Referring to section 906, Revised Statutes of the United States, providing for the exemplification of records of another state as evidence (not pertinent to a court) mentioned in the preceding part of this opinion, this same statute further provides:

“And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or country ⅜ * ⅜ from which they are taken.”

To go to the heart of this question, as to the incompetency of this testimony, we think the predicate is entirely insufficient; in fact, there is none in this record.

Chief Justice Gibson said, in the case of Brotherton v. Livingston, 3 Watts & S. (Pa.) 334, that:

“The object of the recording acts is not only to give notice, but to perpetuate the writing and the proof of its execution.”

faith and credit does the law and usage prevailing in Oklahoma give to copies of records? In the ease of Smith v. Smith, 1 Tex. 625, 46 Am. Dec. 121, Chief Justice Hemphill said:

“Admitting that this record is authenticated according to the act of Congress of 1834, and that it should have, therefore, such faith and credit accorded to it In our courts as, by the laws and usages of the state of Missouri, it has in the courts of that state, yet, having no knowledge of the laws and usages of that state relative to the subject-matter, we cannot determine the faith and credit to which this office copy of the record may be entitled. The form, validity, and effect of the record, and of the probate, if -any be required, must depend on the provisions of some local statute, and this should have been proved before the competency or force of the evidence could be determined. We cannot judicially know, without proof of the law, whether such an instrument is authorized to be recorded — nor the legal effects of the production of a copy of such a record in a court of justice.”

We are unable to find, any modification of this holding in this state. The following cases are to the same effect: Peterman v. Van. Yan. Ann. Rep. 6 Leigh, bottom page 476; Milwaukee Gold Extraction Go. GorGor-don, 37 Mont. 209, 95 Pac. 996. Chase v. Caryl, 57 N. J. Law, 545, 31 Atl. 1025, by the Supreme Court of New Jersey, contains a full review of the subject. This record enen-tirely silent on the question of the force and effect, according to the law and usage, of certified copies of records in Oklahoma.

As to the omission from the certificate of tlie secretary of state of Oklahoma that the attestation of the register of deeds is in due form and by the proper officer: Of course, if the law of that state were to show that the certificate of the register of deeds was in due form, by the proper officer, the authentication accompanying the certificate of the secretary of state, omitting the declaration of due form, may be unnecessary. However, it should be complete in other respects. Take the other federal statute, as to the proof of foreign judgments of sister states, in pursuance of the same full faith and credit clause of the United States Constitution; to the extent of our investigation, the courts are unanimous that the judge’s certificate must state that the attestation of the clerk is in due form. This is considered the evidence by which the court in which the copy is offered knows that the form in use in the state in which the record was made has been complied with. Hagan v. Snider, 44 Tex. Civ. App. 139, 98 S. W. 213; Chapman v. Chapman, 74 Neb. 388, 104 N. W. 880; Craig v. Brown, Pet. C. C. 352, Fed. Cas. No. 3328; Drummond v. Magruder, 9 Cranch, 122, 3 L. Ed. 677; Folson v. Blood, 53 N. H. 434; and many other cases which could be cited along the same line.

If the certified copies are admissible in testimony upon the merits of the cause, the court erred in admitting them in the state of the proof, and on account of the condition of the certificate of the secretary of state of Oklahoma.

The appellant assigns error based upon a rejected peremptory instruction that the cause of action upon the warranty is not proven because there is no proof of eviction, nor any proof of pressure by the owner of any outstanding title, citing the leading case of Jones v. Paul, 59 Tex. 41, and the case of Land Co. v. North, 92 Tex. 75, 45 S. W. 994, by Justice Denman, of the Supreme Court of this state.

At the time of the execution of the deed from Langford to Newsom, there was no actual possession of this land; at least there is no evidence to that effect. Holman Jackson, one of the freedman’s grantees, testified that he. claimed the possession of this land since the date of his conveyance in 1911, but, according to our computation, if the approved roll is equivalent to the enrollment records of the age of Thomas H. Thomas, as of July, 1898 (at which time he was seven years of age), Holman Jackson had no title, though the record shows that May Jackson is the owner of the title to the land. Justice Denman says, in the ease of Land Co. v. North, supra, that a covenantee’s title may remain unquestioned until perfected by lapse of time. The appellee says that the deed of Thomas H. Thomas, executed at the time he was a minor allottee, is 'absolutely void, as to which under several authorities by the Supreme' Court of Oklahoma, construing section 6 of the act of Congress of May 27, 190S, his position is sound. That section provides that persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise provided by law, be subject to the control and jurisdiction of the probate court of the state of Oklahoma. The Oklahoma authorities, which we think are correct, construe this in the nature of a restriction by Congress as to the alienation of land by minor allottees, and such restriction can only be removed through the instrumentality of the probate court, and a deed executed by a minor is void. Jefferson v. Winkler, 26 Okl. 653, 110 Pac. 755; Simmons v. Whittington, 27 Okl. 356, 112 Pac.. 1018; Tirey et al. v. Darneal, 37 Okl. 606, 133 Pac. 615; and other authorities which could be cited.

Appellee urges that the entry of any grantee deraigning title through a void deed is a trespass which he does not have to commit, and hence the question of pressure by the owner of an outstanding title or threat of a suit by such owner is not applicable to this record. As stated, the record is silent as to any possession at the time Langford obtained his deed. One Tate, in this same chain of title, had a possession for a short length of time. Langford would not have ousted any person from actual possession, and we are unable to appreciate the force of appellee’s argument. Justice Denman said, in the ease of Land Co. v. North, supra:

“It has been held in this state that the mere existence of a superior title in another is not a breach of the warranty; the court saying-that, ‘inasmuch as the mere existence of a superior title in the real owner does not work an eviction of a covenantee who has entered upon the land, we hardly see how it can evict one who has received a conveyance with warranty, but has made no actual entry’ ” — citing Jones v. Paul, 59 Tex. 41.

Justice Denman further said in the same case:

“There can be no legal eviction or turning out. unless and until a superior title has been without the invitation of the covenantee pressed upon him. Jones v. Paul, supra. The warranty in former times could only be broken by an actual eviction from the possession, but in modern times the rule has been so far relaxed that an eviction in legal contemplation occurs when the facts are such that it would be useless for the covenantee to attempt to maintain the title conveyed him; e. g., where the holder of the superior title has taken actual possession oi-threatens suit.”

Appellee, however, suggests that the law of Oklahoma with reference to' a cause of action upon the warranty is applicable to-this subject, and we agree to this proposition if the Oklahoma law is sufficiently pleaded. Appellee does plead the following section of the statutesi of Oklahoma, relative to warranty deeds, and the interest conveyed by such a deed:

“Sec. 1202. Interest Conveyed by Warranty Deed. A warranty deed, made in substantial compliance with the provisions of this act, shall convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described, and shall be deemed a covenant on the-part of the grantor, that at the time of making the deed he is legally seized of the indefeasible estate in fee simple of the premises and has good right and full power to convey the same; that the same are clear of all incumbrances and liens, and that he warrants [to] the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same, and the covenants and warranty shall be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed.”

Minor, in liis work on Conflict of Laws, p. 457, § 1S5, in discussing the question as to the proper law governing obligations arising upon covenants of title contained in deeds of conveyance of land, says:

“The better opinion seems to be that the lex situs of the land should govern, so far as covenants of title running with the land are concerned, since the grantor must be presumed to be acquainted with that law as well as his own, and to hold otherwise would tend to make the title to the land uncertain.”

Wharton, in his Conflict of Laws, vol. 1 (3d Ed.) p. 627, § 276d, announces the same doctrine.

The Supreme Court of Nebraska, in the case of Riley v. Burroughs, 41 Neb. 305, 59 N. W. 932, in discussing this question, said:

“We are satisfied that the rule which allows the law of the state wherein the land is situated to prevail, and the covenant to be construed in reference to whether it runs with the land, to be determined by such law, is consonant to or with the soundest and best reasoning, and hence we will adopt it.”

That court assumes a condition where land is situated in one state, and several deeds are executed with covenants of warranty running with the land between different parties residing in different states, with different laws of the states on the same subject producing confusion and uncertainty, which, to some extent, should make the law of the place where the land is situated govern.

The Supreme Court of Louisiana, in the cause of the Succession of Cassidy, 40 La. Ann. 827, 5 South. 296, which seems to be now regarded as rather a leading case on this subject, on the original hearing denied the rule that the law of the place where the land, was situated should be applicable. However, on rehearing, the land being situated in Texas, and, because in this state a covenant of warranty runs with the land, that court recognized the principal that the jurisprudence of Texas as to the obligations of the parties should control, and applied what they construed to be the law of Texas with reference to the question of eviction.

The Supreme Court of Oklahoma, in the ease of Faller v. Davis, 30 Okl. 56, 118 Pac. 384, Ann. Cas. 1913B, 1181, construes a general warranty deed made in substantial compliance with the provisions of their law, as containing, by the operation of section 1202, quoted above, a warranty of seisin, as well as a warranty of full power to convey the property. This record speaks a general warranty deed. The article cited also constitutes the warranties mentioned as running with the land. The court in that case also said that the covenants of “good right to convey and of seisin,” if broken, are broken when made, and an actual eviction is unnecessary to consummate the breach. Of course, we are not advised in the condition of this record just what section 1202 means when it speaks of “a warranty deed made in substantial compliance with the provisions of this act.” However, we know a warranty deed is substantially the same wherever the common law is administered, unless restricted or enlarged by statute; but we agree with appellee’s position that the law of Oklahoma, with reference to the obligations of the warranty in this case is applicable, if the ambiguity relative to the language quoted is removed.

The record shows that Newsom and Hill testified, in substance, that one Hugh Spencer had a conversation with them referable to a stock of goods, and that Spencer had put in a long-distance call for Langford, and that some one came to the phone at the other end of the line, and that Spencer talked with him, and said that Langford offered to take $1,500 for the stock of goods. Appellant claims that there was sufficient evidence from which the jury could have found the agency of Spencer, and hence that the testimony of Newsom and Hill of Spencer’s conversation, purporting to have been with Langford, was admissible. This testimony was offered on the question of value of the stock of goods as an admission of Langford, through his agent, as to the value of the goods, which statement appellant claims is different from his testimony as to value. The court first admitted the testimony, and then withdrew it on the objection of defendant that it was not shown that Spencer was Langford’s agent. Assuming that the testimony was sufficient to present the question of Spencer’s agency to the jury, so that his declarations of admissions by his principal would become admissible against him as to value, the brief of appellant does not show such condition of the stock of goods nor the time when the declaration was made as to the similarity of conditions; that such an admission of value would have been proper testimony. Of course, if Spencer was the agent of Langford to sell the goods, the testimony of the witnesses as to the declaration of the agent of the admissions of his principal as to value would have been proper, but only admissible as to the weight to be given to Langford’s testimony; and, if the stock of goods spoken about by Spencer, the agent, if agency is shown, is the same stock sold by Langford to Newsom as to amount, etc., we are inclined to think that the testimony in the record is sufficient to submit the question of agency to the jury, but the jury’s consideration of it would be relevant only as to the weight of the testimony of Langford, and not as proof of value.

For the< errors indicated, the cause is reversed and remanded.

On Motion for Rehearing.

This court did not hold that affidavits, under the Texas statute, as a predicate to the introduction of certified copies, were necessary. The appellee makes considerable complaint that this court, as to certain questions, decided questions upon matters not embraced in the purview of objections contained in the bill of exceptions. The matters referred to are those of substantive law for the benefit of the trial court in view of a new trial, and, as we thought, in reality for the benefit of appellee, whatever conception he may have of its erroneousness.
      ig^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDEiRGAST, P. J.

license: Public Domain

text:
    WILLIAMS v. STATE.
    (No. 3476.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    1. Criminad Law @=>1122 — Refusal of Instructions — Review.
    Refusal of requested charges will not be reviewed where the record does not show when they were requested, and where no bill of exceptions to the refusal is in the record.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. @=> 1122.]
    2. Homicide <§=>311 — Punishment for Murder-Power of Court and Jury.
    Under Acts 33d Leg. c. 116, defining “murder,” and authorizing the death penalty or imprisonment for life or for a term not less than five years, the jury may assess the death penalty where the evidence shows beyond a reasonable doubt an unlawful killing with malice aforethought, whether the malice is expressed or implied, and the court may not fix the punishment.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 662, 663; Dec. Dig. @=3311.]
    3. Homicide @=>250 — Murder—Evidence.
    Evidence held to support a conviction of murder justifying the death penalty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Doc. Dig. @=>250.]
    Appeal from District Court, Marion County ; H. F. O’Neal, Judge.
    Alex Williams was convicted of murder, and he appeals.
    Affirmed.
    R. R. Taylor, of Jefferson, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDEiRGAST, P. J.

Appellant was convicted of the murder of Henry Terhune, and the death penalty was assessed. It will be unnecessary to give in detail the testimony of the several witnesses. We will give a succinct statement which the evidence was amply sufficient to establish:

All the parties were negroes. Henry Ter-hune had “kept” Savannah Parker, a lewd woman, for a number of years, till about two years prior to the killing. Alex Williams, appellant, succeeded him and “kept” her for the next two years just prior to the killing. For most of the time during these last two years Terhune had been away from Jefferson, where appellant and Savannah lived. The killing occurred over this woman. She began to show her preference for Terhune and go back to her first love, and cast appellant off shortly before the killing. The killing occurred in the early part of a bright moonlight night. Savannah intended going that night to sit up with a corpse. Appellant called at her house while she was at supper, claiming he had a “date” with her, arid sat out on her front gallery. After his arrival a negro woman, Alcey Terry, also arrived at Savannah’s house. Just before they got ready to leave Terhune also appeared at her house. He stopped at her gate a few feet from her gallery; didn’t go inside. He was in his shirt sleeves. When he arrived, he and appellant quietly and apparently friendly spoke to one another. Savannah asked Terhune if-he had come after some pears that had been left there for him. He said not. They then started put to go to where the corpse was. Terhune, still at the gate, opened it for the others to pass out, which they did, the woman Alcey in front, Terhune next, Savannah next, and appellant in the rear — all walking along in a path single file going from Savannah’s towards Mary White’s house, only 70 feet distant. Appellant said Savannah started off with Terhune. The testimony shows thát, while thus walking in the path single file, Terhune said apparently to Al-cey, in substance, that something was in the path; he would kick it out. Appellant’s house was some 175 feet distant from Savannah’s house, and in front of Mary White’s, 170 feet therefrom. Just after leaving Savannah’s house, and before any of the parties reached Mary White’s, appellant, without saying anything, left the others and went directly, to his house, got his loaded shotgun, supplied himself with loaded shells, and immediately went towards deceased. In the meantime the other two women and deceased had reached Mary White’s. Savannah went in and asked Mary White for a pin which she needed and got to fasten her dress. The other woman, Alcey, and deceased, passed just beyond Mary White’s gate, and were waiting for Savannah to come back before proceeding. Just as Savannah came out of Mary White’s appellant approached from his house, stopped about 50 feet from where deceased and Alcey were standing, and threw his gun down on deceased. Savannah halloed to him twice not to shoot or not to kill that man. Appellant said to deceased, “Mr. Henry, I understand you say that you would kick me out of the path,” or “Didn’t I understand you to say that you would kick me out of the path,” or “knock me out of the path,” and nothing more. Deceased said nothing in reply, and did. nothing, and appellant immediately shot him. The shot from the first fire hit the deceased about the ankle with small shot. Appellant at once ejected the fired shell, reloaded, and at once fired the second shot, hitting the deceased in the body and killing him instantly. When the first shot was fired, deceased ran back towards Savannah’s house. The second shot struck him just as he got opposite Mary White’s gate, and he fell in front of her gate and died immediately. As soon as said two women, Aleey and Savannah, saw and heard the shooting, they ran back past Savannah’s house to a neighbor’s some 225 feet further, and both got under the bed to hide from appellant. As they started off appellant said, in substance, to Savannah, that he intended to shoot or kill her too. 1-Ie followed the two women up to the house where they had got under the bed. Appellant’s son came to him there and took him away. He then fled to escape arrest, and some days later was caught by the officers in another county to which he had fled. Mary White and others testified that they saw and heard the whole thing from immediately before the shooting until it was over with. Mary White said deceased said nothing whatever at any time; that he made no motion with his hands in any way as if to get or draw any weapon whatever; that when appellant first shot him, he started to run the same way the women did, and did take several steps wrhen the appellant fired a second shot, which resulted in his immediate death, deceased falling at her front gate. The un-contradicted testimony shows that the employer of the deceased, a white man, very soon after the killing arrived at the deceased’s body, before any other, and he, with others, thoroughly searched the body and pockets of the deceased, and told what all they found in the several pockets, but that the deceased had no arms of any kind — not even a pocketknife; that after making this complete search of his body he had the body removed to Savannah’s house to prepare the body for burial; he himself, with the officers, then went to hunt the appellant, but could not find him; that about three hours later he came back to the body of the deceased with the undertaker, and they then, for the first time, found an old pocketknife closed and in one of the pockets of the deceased. He was positive this knife nor any other was in the pocket of the deceased or on him anywhere when he first searched the body and had it removed to Savannah’s. It was shown clearly that appellant was not nearer than about 50 feet of the deceased when he first shot, and that at the second shot he stepped up only a few feet nearer to him; both empty shells from appellant’s gun were found at this location; that as soon as appellant killed the deceased he started straight after the two women with his gun, and followed them to where they had gone to a neighbor’s and hid under the bed, as stated.

Appellant’s defense was self-defense. He testified that when he approached deceased, threw his gun down on him, and said what he did about kicking him out of the path, that the deceased at once threw his hand back to his hip pocket, where he (appellant) thought he had a pistol, and he thought deceased was going to draw the pistol and shoot him, and he shot deceased in self-defense. The circumstances disprove this, and the disinterested eyewitnesses swore positively to tlie contrary. Appellant also swore that he met the deceased the morning of the day before the killing that night, and that deceased then forbade him from going to see said Savannah, and threatened that, if he did, he would kill him. He also claimed that Savannah’s son-in-law, Thomas, told him that same day that appellant threatened to kill him if he didn’t let Savannah alone. The proof showed that said Thomas died before this trial, and, of course, appellant had killed the deceased before then. The circumstances and all the evidence would justify the jury to disbelieve, as they did, appellant’s said testimony ; in fact, all the circumstances indicated the reverse as the truth. However, this testimony by appellant raised these issues, and the court submitted self-defense independently, and self-defense in connection with threats, fully to the jury in his charge, to which there is no complaint whatever by appellant, and the jury found against him.

Appellant made no exception in any particular to the court’s charge. He requested two special charges, but when they were requested is not shown, and he took no bill of exceptions to the refusal of the court to give either of them. Under the law as it now is, the refusal of the court to give these charges is not raised in such a way that we could consider them, but We have considered them, and the court correctly refused to give either of them.

The only other question raised by appellant is that he claims the evidence was insufficient to authorize the jury to assess the death penalty against him.

When our law provided for two degrees of murder — first and second — it authorized the death penalty to be inflicted only when express malice was shown. It occurs to us the evidence in this case was sufficient to show express malice, and, even under the old law, to have authorized the infliction of the death penalty. But by the amended act of 1913 (chapter 116) the Legislature expressly did away with the two degrees of murder, and unquestionably, under the new law, the death penalty can be inflicted even when the evidence does not show express malice. In other words, our law of murder, as it now is, authorizes the jury to assess the death penalty when the evidence is sufficient to show beyond a reasonable doubt an unlawful killing with malice aforethought, whether that malice is' express or implied. It also now authorizes the jury to inflict the punishment for any term of years, as low as five, where the evidence even should unquestionably show express malice. In all events, the punishment for murder is left to the jury. This court has no power or authority to fix the punishment. If the evidence is sufficient to justify the jury to believe beyond a reasonable doubt that the killing is with malice aforethought and unlawful, they are clearly authorized to assess the death penalty.

In our opinion, the evidence in this case was amply sufficient to show an unlawful killing with malice aforethought, and we are not authorized under the law to disturb the verdict because the jury assessed the death penalty.

This being a death penalty case, we have read and studied it carefully. No error is shown in the trial, and we cannot do otherwise than order the judgment affirmed, which is done.
      <@m>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. DAVIDSON, ,T.

text:
    Ex parte ADAMS.
    (No. 3456.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.
    Rehearing Denied March 3, 1915.)
    1. Witnesses <⅜^>305 — Peiviiosgbs—Sele-In-CRIMINATION.
    A witness relying on the privilege against self-incrimination must assert his privilege at the earliest opportunity, and he cannot answer questions in part and then refuse to answer, other questions legitimate to cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1053-1057; Dec. Dig. <®^305.j
    2. Witnesses <s=^306 — Privileges—Sele-In-CKIMINATION.
    Where a witness appearing before a justice of the peace sitting as a court of inquiry and investigating violations of the local option laws voluntarily and without any objection answered all questions and stated all facts, if any, which would incriminate him, refusal to answer questions which would incriminate others could not be justified oh the ground that the answers would incriminate him, and, under Code Cr. Proe. 1911, art. 977, he was guilty of contempt for refusing to answer.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1058-1060; Dec. Dig. <3=>306J
    Davidson, J., dissenting.
    Appeal from District Court, Johnson County ; O. D. Lockett, Judge.
    Habeas corpus by John Adams1 to obtain his release under a commitment for contempt for refusing to answer questions put to him as a witness. From a judgment of the district court denying relief, he appeals.
    Affirmed.
    W. B. Featherstone and W. E. Myres, both of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from the order of the district judge on habeas corpus, remanding appellant, under the judgment of the justice of the peace, for contempt in refusing to answer certain questions.

We have these statutory provisions:

“When a justice of the peace has good cause to believe that an offense lias been, or is about to be, committed against the laws of this state, he may summon and examine any witness or witnesses in relation thereto; and, if it shall appear from the statement of any witness or witnesses that an offense has been committed, the justice shall reduce said statements to writing, and cause the same to be sworn to by the witness or witnesses making the same; and, thereupon such justice shall issue a warrant for the arrest of the offender, the same as if complaint had been made out, and filed against each offender.” C. C. P. art. 976.
“Witnesses summoned under the preceding article who shall refuse to appear and make a statement of facts, under oath, shall be guilty of a contempt of court, and may be fined not exceeding one hundred dollars, and may be attached and imprisoned until they make such statement.” C. C. P. art. 977.

The justice of the peace, M. L. Daniels, was proceeding under these articles1, and had before him the appellant. We copy the order he made as follows:

“Be it remembered that on the 5th day of February, A. D. 1915, M. L. Daniels, a justice of the peace of precinct No. 1, Johnson county, Tex., sitting as a court of inquiry in Cleburne, Johnson county, Tex., and having under investigation the question as to whether or not the parties who run and control the Oklahoma Wagon Yard, situated in Cleburne, Johnson county, Tex., were violating the local option liquor laws which are now in force in Johnson county, Tex., had before him one John Adams, who, after being interrogated under his oath, after having been duly and legally sworn by said justice of the peace, admitted and testified that on the 2d day of February, 1915, he had in his possession in Johnson county, Tex., a wagon and team belonging to Baylor Looper, who owns and controls the Oklahoma Wagon Yard, in Cleburne, as aforesaid, and that said wagon was loaded with 24 gallons of whisky in one-half pint bottles and 248 pint bottles of beer, and who also admitted that said intoxicating liquors were obtained by him in Ft. Worth, Tex., on the order of three or four different parties, and that he had been instructed to bring said intoxicating liquors and deliver them at the Oklahoma Wagon Yard, in said Cleburne, Johnson county, Tex., whereupon the following questions were propounded to said witness by the county attorney of Johnson county, Tex., who was conducting said investigation before the said justice of the peace: (1) Were your instructions to buy said intoxicating liquor and transport it to the Oklahoma Wagon Yard, in Cleburne, Tex., verbal or in writing? (2) Who gave you said instructions, and, if they were in writing, to whom did you deliver them? (3) To whom were you going to deliver said intoxicating liquor when you arrived in Cleburne? (4) Who sent you after said intoxicating liquor? Give the name of each one that you talked with about making said trip to Ft. Worth after said liquor. (5) Who authorized you or delivered to you the wagon and team of Baylor Looper, and when and where was said team delivered to you, and by whom? (9) Give the names of every person who was present at the time when the trip to Ft. Worth after said liquor was talked of or at the time when the team was delivered to you. • (7) To whom did you deliver the orders for said liquor at Ft. Worth, Tex.? (8) Who delivered said liquors to you? Give the name of the street, the name of the person, and the number of the place where they were delivered to you? (9) Did you pay for said intoxicating liquor or make any arrangement to pay for the same for any other party while you were there? (10) Do you know who furnished the money to pay for said liquor or any part thereof, and, if so, state who it was and how the arrangement was made? (11) Was any part of said intoxicating liquor intended to be used by you individually or by your family? If so, state what part or portion or quantity.
“To each and all of the foregoing questions the witness John Adams, then and there before said court of inquiry while the same was in session refused to answer, except question No. 5, which he answered as follows: ‘Baylor Looper authorized me to get said team and delivered said team to me at the Oklahoma Wagon Yard, in Cleburne, Tex., about 12 o’clock daytime on the 2d day of February, 1915.’
‘ And to the witness’s failing to answer each and all of said questions except the fifth, the said court, M. L. Daniels, here and now holds said witness in contempt of court, and here commits the said witness to be confined in the jail of Johnson county, Tex., by the sheriff of said county.
“It is therefore ordered, adjudged, and decreed by said court that said witness is hereby committed into the custody of the sheriff of said county, to be by him confined in the jail of said county until said questions have been answered by said witness, or until further ordered by said court.
“Witness my hand this the 5th day of February, A. D. 1915. M. L. Daniels, Justice of the Peace, Prect. No. 1, Johnson County, Texas.”

The proper writ was issued on this order to the sheriff, and under it he took charge of and placed said Adams in jail. He thereupon sued out, as stated, a writ of habeas corpus before the district judge, who, after hearing all the evidence and examining all the papers, remanded said Adams to the custody of the sheriff.

From the judgment of the justice of the peace it is clearly seen that the appellant voluntarily and without any objection answered all questions and stated all facts, if any, which would incriminate him, and it was only when the said questions asked him which would incriminate another that he refused to answer, claiming that his answers would incriminate him.

In the well-considered case of Ex parte Park, 37 Tex. Cr. R. 590, 596, 40 S. W. 300, 302 (66 Am. St. Rep. 835), this court held:

“Under the authorities as we understand them, the objection of privilege — that is, that the answer to the question would tend to criminate him — must be made at the threshold. He cannot wait and answer a part, and then refuse to answer other questions legitimate to a cross-examination. If he voluntarily states a part of the testimony, he waives his right, and cannot afterwards stand on his privilege. If it were otherwise, he might give in testimony hurtful to a defendant, but refuse to be cross-examined as to matters which might be to defendant’s benefit. See Bap. Wit. § 269; Whar. Crim. Ev. § 470; State v. Blake, 25 Me. 350; Com. v. Price, 10 Gray [ Mass.] 472 [71 Am. Dec. 668]; People v. Freshour, 55 Cal. 375; Connors v. People, 50 N. Y. 240; State v. K-, 4 N. H. 562. The latter case, of State v. K-, is so much to the point that we quote the opinion in full. K. was indicted for unlawfully breaking and entering a public burial place, and taking up and carrying away the body of a person who had been there interred. On the trial the defendant called a witness who, stated that he knew defendant to be innocent, but that he could not state how he knew that without implicating himself, and he inquired of the court whether or not he was bound to testify at all, and, if bound to testify, how far. he was compelled to go. The court used the following language:. ‘The witness is not to be compelled to answer any question if the answer will tend to expose him to a criminal charge; but, if he state a particular fact in favor of the respondent, he will be bound on his cross-examination to state all of the circumstances relating to that fact, although in doing so he may expose himself to a criminal charge. We shall not compel the witness to state that he knows the respondent to be innocent if a full account of his knowledge on that subject will tend to furnish evidence against himself. But, if he testifies to that fact, we shall permit the Attorney General to inquire how the witness knows that fact, and compel him to answer the question. It is clearly inadmissible to permit a witness to give a partial account of his knowledge of the transaction, suppressing other of the circumstances, whether the evidence is to be used in favor of or against the state.’ ”

•It is further said and held in said case (37 Tex. Or. R. 594, 595, 40 S. W. 301, 66 Am. St. Bep. 835):

“We hold that’ this matter is, in the first instance, to be determined by the court or judge; that is, ‘it must appear to the court from the character of the question and the other facts adduced in the case that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime. The liability must appear reasonable to the court, or the witness will be compelled to answer.’ See Ex parte Irvine [C. C.J 74 Fed. 954, which is an exhaustive discussion of this question, and the authorities there cited; Fries v. Brugler, 12 N. J. Law, 79, reported in 21 Am. Dec. 52, and note thereto on page 57; People v. Mather, 4 Wend. [N. Y.] 229, reported in 21 Am. Dec. 122, and authorities cited in note thereto. We quote from Whar. Grim. Ev. § 466, as follows: ‘To protect the witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. The witness, as will be seen, is not the exclusive judge as to whether he is entitled on this ground to refuse to answer. The question is for the discretion of the judge, and, in exercising this discretion, he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. But, in any view, the danger to be apprehended must be real, with reference to the probable operation of law in the ordinary course of things, and not merely speculative, having reference to some remote and unlikely contingency.’ Mr. Wharton further says (section 469): ‘The witness is not the sole judge of his liability. The liability must appear reasonable to the court, or the witness will be compelled to answer. Thus a witness may be compelled to answer as to conditions which he shares with many others, though not as to conditions which would bring the crime in inculpatory nearness to himself. But, in order to claim the protection of the court, the witness is not required to disclose all the facts, as this would defeat the object for which he claims protection. It is not, indeed, enough for the witness to say that the answer will criminate him. It must appear to the court, from all the circumstances, that there is a real danger, though this the judge, as we have seen, is allowed to gather from the whole case, as well as from his general conception of the relations of the witness. Upon the facts thus developed, it is the province of the court to determine whether a direct answer to a question may criminate.’ And see authorities cited in notes to said sections. This rule has been followed in this state. See Floyd v. State, 7 Tex. 215.”

This case has many times, and the principles announced in it, been reaffirmed by this court. The questions are so well settled we deem it.unnecessary to further discuss them, or cite other authorities. In our opinion, under the circumstances of this case, the answer of the appellant, whatever it might he, to each and all of the questions propounded would not tend to incriminate him and under the circumstances as shown by this record, he should he compelled to answer each and all of them, and held in contempt and confinement until he does so and purges himself of the contempt.

The judgment will be affirmed.

DAVIDSON, ,T.

(dissenting).

My Brethren dispose of this case upon the theory: First, that the answers of relator would not show that he had violated the law; and, second, that having taken the witness stand, he must tell everything, and cannot refuse to testify. The case of Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835, does not sustain their second position. That case expressly holds that the witness cannot be made to testify against himself. Relator was not a volunteer witness in the case. If he had been indicted and was testifying in his own behalf, then he would be required to answer questions, but in this ease he was compelled to testify as far as he did in a court of inquiry, and refused to continue giving testimony. He had not agreed to testify, was not a voluntary witness, and, therefore, did not waive, and could not be held to waive, any right attached to him under the Constitution and laws of Texas. If he had made an agreement to testify against others who were engaged in violations of the law with him, or to facts that might incriminate him, then he could testify or not at his option. 1-Ie could make the agreement and then refuse to be bound by it. The cases are quite numerous, but I cite Neeley v. State, 27 Tex. App. 327, 11 S. W. 376; Nicks v. State, 40 Tex. Cr. R. 1, 48 S. W. 186; Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835; Stevens v. State, 42 Tex. Cr. R. 171, 59 S. W. 545. The state, under such circumstances, may hold the indictment against him until he has complied with the agreement and testified. Ex parte Greenhaw, 41 Tex. Cr. R. 281, 53 S. W. 1024; Oates v. State, 48 Tex. Cr. R. 135, 86 S. W. 769; Ex parte Gibson, 42 Tex. Cr. R. 654, 62 S. W. 755; Ex parte Carter, 62 Tex. Cr. R. 113, 136 S. W. 778.

I cannot agree with the majority that, had relator testified truthfully, his answers would not have incriminated him in a violation of some of the liquor laws, and especially what is known as the Allison act, as construed by my Brethren in the recent cases of Johnson v. State, 171 S. W. 211, and Perryman v. State, 173 S. W. 1195. Of course, I did not agree to those opinions. If, as indicated, relator was carrying the intoxicating liquors found in his possession from Et. Worth to parties in Johnson county, which is a local option territory, for the benefit and use of the consignees or their families, the burden of proof would be on him, as held by the majority, to show that these consignees were going to use it exclusively for their use or the use of their families. Such is the rule laid down by the majority in Johnson v. State and Perryman v. State, supra. This would be more than a difficult proposition, especially in view of the fact that he was, carrying 24 gallons of whisky and 248 bottles of beer. Under that view of it the burden of proof would be shifted from the state to the defendant, and he would have to prove the honesty of the transaction and that the consignees were going to use the intoxicating liquors individually. This would place him, under the facts of this case, beyond the hope of an acquittal under a charge for transporting all this intoxicating liquor, and require of him the impossible task of keeping strict guard and watch upon the consignees to see that they only used it for themselves or their families until the entire quantity was consumed. If he failed to prove that the consignees were going to use it as indicated, then he would be consigned- to a felon’s cell for the transportation. The presumption of innocence is in favor of the accused or citizen, and not the state.

Inasmuch as my Brethren have confined themselves to the two questions stated, I do not purpose to go further in writing this dissent. They place their proposition on the idea that relator’s answers would not show he violated any law. The question of immunity from punishment was not therefore discussed, because, if he was not guilty, there could be no immunity from punishment; he would not be guilty. As the majority opinion presents the matter, I do not care to write further.

As the opinion is written I believe it is clearly erroneous, and I therefore dissent.
      <&c^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    McANTHONY v. STATE.
    (No. 3467.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Homicide ®=»301 — Instructions — Defense oe Another.
    In a prosecution for homicide, where it was the theory of the defendants that deceased drew his pistol first and fired the first shot, intending to shoot defendant or another, charges which stated that if the jury believed that the defendant, not in defense of himself, unlawfully and with malice killed deceased, they should convict, but that if they believed that defendant killed deceased, who had first shot at defendant, or was about to kill another, or it so appeared to defendant, and that the defendant killed deceased to prevent the killing or infliction of serious injury upon the other, the killing would be lawful, sufficiently stated the law as to the defense of another as justification for the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. <©=>301.]
    Appeal from District Court, Burleson County ; Ed R. Sinks, Judge.
    Will Me Anthony was convicted of murder, and he aijpeals.
    Affirmed.
    J. R. Heslep, of Caldwell, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, and given five years in the penitentiary. »

There were two questions raised: The first was an exception to the charge, properly taken and reserved,' that in the fourth paragraph the court failed to tell the jury that the defendant would have the right to shoot and kill the deceased in defense of another, as well as in the defense of himself, as the evidence showed. The second ground alleges the insufficiency of the evidence to support the conviction.

The fourth paragraph of the charge, to which exception is reserved, reads as follows:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, Will Mc-Antliony, with a pistol, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death, or serious bodily injury, with intent to kill, did unlawfully and with implied malice shoot .and thereby kill said Eugene McKinney, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period,” etc.

Had the charge stopped at this point, it would have been clearly insufficient and reversible; but the court gave the following charge, which is paragraph 0:

“If you believe from the evidence that the defendant, Will McAnthony, did, with a pistol, shoot and thereby kill the said Eugene McKinney, and you further believe from the evidence that the said Eugene McKinney did first, with a pistol, shoot at the defendant, or if you believe from the evidence that the said Eugene McKinney was about to kill and murder Neis Dillard, or inflict upon him serious bodily injury, or that it so appeared to the defendant, and that the defendant did then shoot the said Eugene McKinney to prevent the killing or the infliction of serious bodily injury upon the said Neis Dillard by the said Eugene McKinney, then you are charged that in either case his act in so killing the said Eugene McKinney would be lawful, and he would not be required to retreat in order to avoid the necessity or the apparent necessity of shooting the said Eugene McKinney, and if you so find you will return a verdict of not guilty, and in passing upon this matter you must do so from the defendant’s standpoint at the time, as it appeared to him.”

We are of opinion that these two charges sufficiently submit the issue of self-defense in favor of the defendant as to the act of McKinney in trying to shoot him, or shooting at him, as well as the apparent purpose or real purpose of shooting Neis Dillard. As before stated, the appellant suggested two theories — one that Eugene McKinney pulled his pistol and fired. He is supported in this contention with considerable amount of testimony. There is also the issue that- he may have shot at Neis Dillard, and, whether he shot at Neis Dillard or not, that he pulled his pistol for the purpose of shooting Neis Dillard, when the defendant interposed in the difficulty, and the shot may have been fired at appellant. These two theories are in the case by a considerable amount of testimony. We are of the opinion that the charge as given, however, sufficiently submits to the jury, so they were not misled by the charge, in such manner as to sufficiently present these issues.

With reference to the evidence and its sufficiency, we deem it unnecessary to recapitulate it. There were quite a number of witnesses who testified pro and con. That for the state would support, in our judgment, the finding of the jury. Had they believed the defendant’s side of it, he should have been acquitted. We are of opinion it would serve no useful purpose to go into a detailed statement of the evidence.

As the record presents itself to us, we are of opinion the judgment ought to be affirmed; and it is so ordered.
      <g=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    JOHNSON v. STATE.
    (No. 3474.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    1. Criminal Law <§=>1004, 1086 — Questions Reviewable — Rulings on Evidence — Record.
    Where motion for new trial complaining of error in the admission of evidence of statements by accused did not disclose what the statements were, and there was no bill of exceptions showing that the testimony was objected to when offered, the ruling was not reviewable.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2676-26S4, 2736-2769, 2770, 2772, 2794; Dec. Dig. <§=>1064, 1086.]
    2. Witnesses <©=>206 — Privileged Communi- ' cations — Attorney and Client.
    Statements by accused, while carrying_ on a general conversation in the presence of his attorney and a third person, made to both, are not privileged communications to the attorney.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 761, 764, 765; Dec. Dig. <§=>206.}
    3. Criminal Law <§=>957 — Verdict — Impeachment by Jury.
    A juror may not impeach a verdict of guilty by declarations after the discharge of the jury that, if he had had time, he would not have consented to a conviction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. <©=> 957.]
    4: Criminal Law <§=>1124 — New Trial — Misconduct of Jury — Review.
    Where the evidence on motion for new trial because of misconduct of the jury is not in the record, denial of the motion is not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dee. Dig. <©=>1124.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.

      Leander Johnson was convicted of murder, and he appeals.
    Affirmed.
    O. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 10 years’ confinement in the penitentiary.

The first ground in the motion for a new trial complains that the court erred in permitting Gol. J. S. Williams to testify to statements made by appellant in his presence, and in the presence of appellant’s attorney, on the occasion of their visit to the scene of the homicide. The motion does not disclose what the statements testified to were. There is no bill of exceptions in the record evidencing that the testimony was objected to when offered; consequently it is not presented in a way to- authorize a review of that question. However, having read the statement of facts, we think the evidence admissible. Appellant was carrying on a general conversation, arid, while his attorney was present, it was not in the nature of a privileged communication to his attorney, but a remark to all present.

In another ground it is contended that a juryman, Mr. Tolbert, said, after being discharged, “if he had had time he would have hung the jury.” This ground of the motion is contested, and it appears the court heard evidence thereon. The evidence is not before us; consequently we cannot review this ground. But, as a matter of law, a juryman will not be thus allowed to impeach his verdict after being discharged.

In another ground it is contended that the juror J. M. Barr was prejudiced against appellant. If so, such facts were as well known before the trial as after verdict. At least there is no statement in the motion that appellant had learned such facts since the trial of the case.

The only other ground is that the juryman Barr considered evidence which was by the court excluded.- In the contest of the motion it is stated:

“The state respectfully shows to the court: That the juror Barr did not consider any fact or circumstance against the defendant upon the trial of this cause, except the evidence in this cause. That the juror Tolbert did not make the statement to the man Baker, as charged by the defendant in his motion, and did not convict the defendant, believing that he was not guilty on account of having some business to attend to, but convicted the defendant because the evidence established the fact that the defendant was guilty, and no business of the juror had anything to do with the conviction of the defendant, and that said juror will so testify. That nothing was discussed in the jury room or at any time, except the evidence introduced in this case, under the charge of the court, and there was no misconduct on the part of any juror, and that there is now in attendance upon this court the juror Barr and the juror Tolbert, and other jurors in this case, all of whom will testify to the facts alleged in this contest, and the state requests that said jurors be permitted to testify in support of this contest.”

It appears the court heard evidence on all these matters and overruled the motion. If appellant expected us to review the action of the court, he should have presented the testimony heard on the motion.

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


text:
    BRIDGES v. STATE.
    (No. 3453.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    4-Ppeal from San Augustine County Court; Wm. McDonald, Special Judge.
    E. D. Bridges was convicted of selling liquor in a prohibition county, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the-State.
   HARPER, J.

Appellant was convicted of making a sale of liquor in a prohibition county, and his punishment assessed at 20 days’ imprisonment in the county jail and a fine of $100.

There are no bills of exception in the record. No special charges were requested, and there is no complaint of the charge of the court as given. So the only thing we can consider is, Will the testimony sustain the verdict? If the jury believed the testimony of Zack Alvis, and it appears they did, it clearly showed a sale of whisky by appellant to Alvis.

The judgment is therefore affirmed.


text:
    DODSON v. STATE.
    (No. 3479.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.
    On Motion for Rehearing, April 7, 1915.)
    1. Criminal Law <@=>1088 — Appeal—Record-—Statement ot Eaots.
    A statement of facts cannot be considered-on appeal from the denial of motion for new trial, when not filed during term time.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2676, 2746-2751, 2757, 2766, 2782-2802, 2899; Dec. Dig. <@=>1088J.
    2. Criminal Law <§=1004 — Review — Decision or- Lower Court — Contention Not-Made Below.
    In a prosecution for violating the local option law, where the statement of facts on motion for new trial showed that the contest was directed to the question of defendant’s guilt in making a sale, and not to the question whether the local option law was in effect in the county at the time of the alleged sale, such latter contention could not be relied on on appeal from-denial of the motion.
    [Ed. Note. — For other eases, see Criminal-Law, Cent. Dig. §§ 2676-2684; Dec. Dig. <©=>• 1064.]
    Appeal from Nolan County Court; Jno. I-I. ■Cochran, Jr., Judge.
    Earnest Dodson was convicted of a misdemeanor, and he appeals.
    Affirmed.

      W. E. Ponder, of Mt. Pleasant, for appellant. O. C. McDonald, Asst Atty. Gen., for tlie State.
   DAVIDSON, J.

Appellant was convicted ■of violating the local option law, his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail. He pleaded guilty. On motion for new trial he moved the court to set aside the plea as entered and hear the case on plea of not guilty. This was refused. As presented this was not error. The court tried the cause on waiver of jury by appellant. There was some testimony introduced, which is found in the record. It raises the question of agency. The court decided this against appellant. In view of the record, we believe the court was justified in finding against this contention.

The judgment is affirmed.

On Motion for Rehearing.

At a previous day of the term the judgment herein was affirmed. The opinion shows that appellant plead guilty, and on motion for new trial moved the court to set aside his plea and the judgment entered on it and- permit him to enter a plea of not guilty and try tlie ease from that viewpoint. The court refused.

Appellant contends that, inasmuch as it wras not shown that local option was in effect in Nolan county, therefore the judgment should have been reversed. Under a plea of guilty in a misdemeanor case, it is not necessary to introduce evidence; at least such is the statute. On a plea of guilty in a misdemeanor the court may take the plea and hear evidence or not. O. O. P. 1911, art. 5S2. In this case there seems to have been no evidence introduced on the trial; at least there is no statement of facts showing that any testimony was introduced on the trial. On motion for new trial there is a statement of facts signed and approved by the judge, ■which was introduced in regard to the motion, wherein it was requested that the judgment be set aside on plea of guilty, and he be permitted to try his case on a plea of not guilty. There is no reason shown of any particular merit why the motion for new trial should have been granted, and if we could consider the statement of facts introduced on motion for new trial, it would show that he admitted his guilt and stated to the court, among other things, that when he pleaded guilty he was advised and admonished as to the consequences of such plea, and yet pleaded guilty and asked the mercy of the court. 1-Ie also testified that he made a statement to the county attorney, after being -warned, admitting his guilt. I-Ie further stated that he knew what he was doing when he pleaded guilty to the court, and told the court'that when he pleaded guilty he “ought to be fined $500 and given 50 days in jail, in addition to being a fool.” This is some of the evidence introduced on motion for new trial, asking the court to set aside the judgment on his plea of guilty. However, this statement of facts and these matters arising on the motion cannot be considered. Court adjourned on the 5th day of December; the statement of facts on motion for new trial was filed on 3d day of February following. There are some bills of exception reserved to the action of the court occurring on motion for new trial, which were filed on 16th day of December. The statement of facts, on motion for new trial and with reference to matters growing out of motion for new trial-, must be filed during term time. The statement of facts cannot therefore -be considered in regard to this matter. But even if considered, we are of the opinion that the court was not in error in refusing to grant the new trial and set aside the plea of guilty and the previous conviction on the grounds stated. The fact that the statement of facts on motion for new trial does not show that local option was in effect, in that county was not made a point in the motion for new trial, and was not called to the attention of the court. If this had been made a ground of the motion for new trial, although he had pleaded' guilty, the motion would be granted if it was shown that local option was not in effect in the county. If local option was not in effect, of course there was no predicate for this prosecution and conviction, but there was no contention that local option was not in effect, and the contest, as shown by the statement of facts, was all directed to the ■question of his guilt of making a sale, he claiming in motion for new trial that he was acting as agent for another party in securing the whisky. If that had been an uncontro-verted fact, then the court should have granted a new trial from that viewpoint, but if we go to the statement of facts introduced before the court on motion for new trial, this is not strongly supported. There is some slight evidence suggesting that issue. But all these matters of fact pass out because the statement of facts was not filed within the time allowed by law and cannot be considered.

As the record presents the question, there was no error shown, and the motion for rehearing will be overruled.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GREENWOOD v. STATE.
    (No. 3483.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.)
    Criminal Law <§=>84 — Classes of Offenses —“Misdemeanor”—Jurisdiction.
    Under an act of the Legislature, the theft of an automobile is a misdemeanor not triable in the district court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig. <§=> 84.]

      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Allen Greenwood was convicted of theft of an automobile, and he appeals.
    Reversed and remanded.
    Newton P. Morrison and W. E. Bane, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

Under the act of the Legislature the theft of an automobile is a misdemeanor, and not triable in the district court. Under the recent case of Sparks v. Stat§, 174 S. W. 351, this case will be reversed, and the cause remanded.
      <g=»For other oases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes


text:
    RIOS v. STATE.
    (No. 3485.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.)
    1. Criminal Law <§=>1081— Appeal — PROCEEDINGS TO TAKE APPEAL — NOTICE OE APPEAL.
    The notice of appeal must be entered of 'record in the minutes of the court, in order that jurisdiction of the Court of Criminal Appeals may attach, and it is not sufficient that the judge’s private docket shows that notice of appeal was given. .
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2722-2724, 2962⅞ Dec. Dig. <§=>1081.]
    2. Criminal Law <§=>1110 — Appeal—Record —Amendment.
    Where the notice of appeal was not entered of record in the minutes of the court, the trial judge had no authority in vacation to amend the record by having the clerk enter up a judgment showing that notice of appeal was given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. <§=>1110.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    Jeorge Rios was convicted of murder, and he appeals.
    Appeal dismissed.
    John A. Jones and A. L. Neal, both of Sinton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a conviction for murder, with the death penalty assessed.

The record does not contain notice of appeal required by the statute. The judge’s private docket shows that notice of appeal was given, but it was not entered in the minutes, and under the decisions it is necessary that it be entered of record in the minutes of the court in order to attach the jurisdiction of this court. See Offield v. State, 61 Tex. Cr. R. 585, 135 S. W. 566.

In the above case the authorities are collated. The trial judge undertook, in vacation, as shown by this record, to amend the record by having the clerk enter up a judgment showing that notice of appeal was given. Under the authorities cited in the Offield Case, supra, this could not be done. This was not a proceeding to substitute lost or destroyed records, but to amend the record. Therefore the district judge was without authority to enter judgment in vacation. The same may be said of the judge’s order correcting the judgment of the court itself. It is unnecessary to discuss those matters, as there is nothing before this court for want of notice of appeal. The record, however, if it could be considered, does not contain a statement of facts.

For the reasons indicated, the appeal will be dismissed.


text:
    RUTHERFORD v. STATE.
    (No. 3465.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.)
    1. Criminal Law <§=>1102 — Statement oe Facts — Striking erom Record.
    A statement of facts, not approved and filed within the time allowed by law, will be stricken from the record on motion.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. <§=>1102.]
    2. Criminal Law <§=>1114 — Review—Motion to Quash — Ineormation.
    In the absence of a statement of facts, the court can only pass on the motion to quash the information.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <§=> 1114.]
    3. Indictment and Ineormation <§=>110 — Sueeiciency — Language oe Statute.
    An information for unlawfully practicing medicine without having registered a certificate as required by law, following the language of the statute, was sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <§=>110.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    J. S. Rutherford was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully practicing medicine without having registered his certificate as required by law, and prosecutes an appeal to this court.

The original transcript showing that the judgment of conviction was entered prior to the convening of the court, and other incon- ■ sistemcies and inaccuracies ’appearing in the transcript, on motion of the Assistant Attorney General, the clerk of the county court was required to make out and file a new transcript herein, and from it it is apparent that the statement of facts was not approved and filed within the time allowed by law. Therefore the motion of the Assistant Attorney General to strike it from tlie record must be sustained.

In the absence of a statement of facts there is but one question we can pass on, and that is the motion to quash the information. The information follows the language of the statute, and the court properly overruled the motion to quash it.

The judgment is affirmed.
      <§s»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BARNES v. STATE.
    (No. 3480.)
    (Court of Criminal Appeals of Texas.
    March 24, 1915.)
    1. Ceimnal Law <§=>400 — Evidence — Best ■ Evidence.
    In a prosecution for the unlawful sale of intoxicating liquors, it was error to admit testimony by the county attorney that a paper, which a United States revenue agent had dropped and which the attorney picked up, was an application signed by defendant for an internal revenue license to sell liquor, without a showing that the paper had been lost or destroyed.
    [Ed. Note. — Ifor other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. <@==3400.]
    2. Cbijiinal Law <@=^417 — Evidence—Decla-eations Out oe Defendant’s Peesence.
    In a prosecution for the unlawful sale of intoxicating liquor, testimony by the county attorney that he told a United States revenue agent, out of the presence of the defendant, that he thought the agent could sell a liquor license to defendant, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. <§=>417.]
    Appeal from District Court, Young County; Edgar Scurry, Judge.
    Cleve Barnes was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Reversed and remanded.
    Brooks & Worsham, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory. This is the second appeal in this case; the opinion on the former appeal being found reported in 168 S. W. 858.

As it becomes necessary to reverse the case on account of the matters presented in bill of exceptions No. 5, we do not deem it necessary to discuss the other questions presented. In bill No. 5 it is shown;

“The state offered and did prove, over defendant’s objections, by the county attorney, C. F. Marshall, the following facts: That he is the county attorney for Young county. That in December, 1913, a United States revenue agent, selling revenue license to retail liquor dealers, came into the county attorney’s office and held a conversation with the county attorney with reference to the sale of revenue license. That the county attorney told the United States revenue agent that he thought he could sell a license to Gleve Barnes at the Star Restaurant in Graham. Then the revenue agent left the office, and was gone some time, and came back, and the witness, Fay Marshall, the county attorney, asked the revenue agent if he had done any business with the defendant, Cleve Barnes. The agent would not reply, but dropped a paper on the floor, and the witness, Marshall, picked it up and read it. It was an application, signed by the defendant Cleve Barnes, to procure a United .States internal revenue license to retail liquor.”

It was improper, over the objections ’ made, to permit the county attorney to testify that the paper he picked up was an application to procure a United States internal revenue license. It was a written instrument, and, before the contents thereof could be testified to, it must be shown that search had been made for the paper in the places where it could be found, and that it was lost or destroyed. It does not appear by this record that any such proof was offered; but the county attorney was permitted to testify to the contents of the written instrument, over the objection “that the application itself is the best evidence of the contents of the document.” Haun v. State, 13 Tex. App. 383; Wyers v. State, 13 Tex. App. 57; Huff v. State, 23 Tex. App. 291, 4 S. W. 890. If appellant had made this application, it could have doubtless been found at the office of the internal revenue collector of the district. It is not shown that any search was instituted in that office, nor that the application had been lost or destroyed.

Again, while it is contended that proper objection was not made to the remainder of the testimony of the county attorney, yet, as the case will be reversed, without discussing that question, we will say that what the county attorney told the internal revenue collector would not be admissible over objection timely made. What he is shown by this bill to have said to the collector would clearly convey to the jury it was the opinion of the county attorney that appellant was engaged in the sale of intoxicating liquors in a prohibition county, and it was improper to permit him to testify that he “told the internal revenue collector that he thought he could sell a liquor license to Cleve Barnes [appellant].” No part of his conversation with the collector would be admissible, the appellant not being present.

The issue to be tried in this case was whether or not appellant was engaged in the business of selling intoxicating liquors, and this illegal testimony bearing directly on that issue, it requires a reversal of the case.

The judgment is reversed, and the cause remanded.