text:
    LOZANO v. STATE.
    (No. 4731.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    1. Homicide &wkey;169(l) — Evidence—Circumstances Preceding tiie Act.
    In a murder trial, testimony of witnesses for the state as to their movements, going from street to street seeking various parties prior to their reaching the scene of a fight shortly before the killing, was not admissible; their movements not affecting accused.
    2. Homicide <&wkey;169(3) — Evidence—Circumstances Preceding the Act.
    Details of a fight preceding the fight in which the killing occurred were not admissible, where, if accused was present at the first fight, he was but an onlooker, and took no part in it.
    3. Homicide <&wkey;169(3) — Evidence—Circumstances Preceding the Act.
    Where there was testimony that deceased’s accusation of accused’s companion of having participated in a previous fight initiated the fatal trouble, only so much evidence of the previous fight was admissible as would serve to connect that matter with the later difficulty.
    4. Homicide ¡&wkey;166(2) — Evidenció — Motive —Quarrels.
    Evidence of a previous fight, in which accused took no active part, was improperly admitted to show accused’s motive for the killing, there being no facts occurring at the time of either the first fight or the one culminating in the killing that would indicate accused had any reason to have animosity toward deceased on account of the first fight.
    5. Witnesses <&wkey;345(l) — Impeachment — Previous Indictment.
    In á murder trial, evidence was admissible for impeaching a defense witness that he had been indicted, tried, and acquitted for the same killing for which accused was on trial.
    6. Criminal Law <&wkey;763, 764(17) — Instructions — Weight oe Evidence.
    A charge as to testimony by a defense witness that evidence of his previous indictment, trial, and acquittal for the same killing as defendant was accused of “was admitted * * * for the sole purpose of affecting the credibility of the witness, * * * and you shall consider it for no other purpose,” was erroneous as a charge upon the weight of the evidence, for the charge should have been so given as not to suggest to the jury that such evidence did affect witness’ credibility, and the jury should be left free to consider it for impeaching purposes or as affecting witness’ credibility.
    7. Homicide <&wkey;300(7) — Instructions—Character oe Weapon Used.
    Where there was testimony that accused, in attack by deceased and companions, had been knocked down with rocks and his left hand broken and his right hand cut, he was entitled to a charge that if the weapon used in the assault upon him was such as to produce a reasonable apprehension of death or serious bodily injury, the jury should regard such attack as being for the purpose of killing him or inflicting upon him such serious bodily injury, in view of Pen. Code 1911, art. 1106, as to presumption from the use of weapons.
    8. Assault and Battery <&wkey;54 — Aggravated Assault.
    Where accused, in vigorous assaults on him by deceased and companions with rocks and their fists, had one hand cut and the other broken, if accused fought, not for the purpose of killing, but for the purpose of resisting the assault, he would not be guilty of punishable homicide in killing deceased, but might be found guilty of aggravated assault.
    9. Homicide <&wkey;307(l) — Instructions.
    There being testimony that the killing was committed when accused was repelling by use of a knife a severe assault by deceased and companions, he was entitled to a charge on aggravated assault, based on the statute, that the instrument or means with which a homicide is committed, are to be taken into consideration in judging of the intent of the offending party, but, if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears.
    10. Homicide <&wkey;307(l) — Instructions.
    Where there was evidence that the killing was committed by accused in repelling by use of a knife a sudden and exciting attack upon him by deceased and companions, accused was entitled to a charge based on the statute providing that, where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the slayer is not deemed guilty, unless it appears that there was an intention to kill, but may be prosecuted for any grade of assault and battery.
    11. Homicide i&wkey;286(l) — Instructions.
    Accused was entitled to an instruction that if the jury believed that accused killed deceased, and not in self-defense, but that the means used were not of a nature calculated to produce death, they should find accused not guilty of homicide, unless there was an intention on his part to kill and he was not acting in self-defense, but that accused could be found guilty of aggravated assault and battery unless acting in self-defense, and in the latter case could not be convicted of any offense.
    12. Criminal Law <&wkey;448(3) — Testimony of Accused.
    There being evidence that accused was suddenly attacked by deceased and companions at night, accused could testify that he did not intend to kill, but only used his knife as a means of defense and to free himself from the attack of his assailants; for an accused testifying in his own behalf has a right to state his intent.
    13. Witnesses <&wkey;352 — Impeachment—Confession.
    Accused’s witness in a murder trial could not be impeached by a written confession, purporting on its face to be made to the chief of police, but which was not in fact made to the chief, he not being present at the time and his name appearing as part of the confession, because the instrument was one of confessions in blank which had been printed by the police department by the wholesale, since to use statements of a party under arrest, even for impeachment purposes, he must be warned according to the statute, and his statements must be in writing in conformity to the terms of the statute.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Jesus Lozano was convicted of murder, and appeals.
    Reversed and remanded.
    W. L. Schlesinger and Chambers & Watson, all of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 15 years’ confinement in the penitentiary.

The record is voluminous. Many of the bills of exception will be treated in a general way. The state’s theory of the case was that four parties, Nacke, deceased, Guerra, Gonzales, and Damm were wandering around at night in the city of San Antonio, going from street to street, seeking certain parties, especially a woman. In their meanderings they came to Matamoras street, where1 they discovered a fight in progress in a house supposed to be one of prostitution. Nacke did not testify, because he was the deceased. The other three parties testified, in substance, the same with reference to their wanderings about the streets, and their arrival at the house of the difficulty. This was between a woman and two men. These parties were strangers to defendant and the witness Pena, who figures in the case as a defense witness. Immediately after this difficulty Pena and appellant went away, as did the other four parties. Shortly after leaving the place of this difficulty the deceased and his companions traveled on one side of the street and Pena and appellant on the other side. The testimony is not clear as to which of the parties crossed the street, but they met in the street, and a difficulty occurred. All parties, state’s witnesses and deceased, were strangers to Pena and appellant. As to just how the difficulty began there is doubt. The state’s contention was that appellant, or Pena, began the difficulty. The appellant’s contention was that the difficulty was brought on by Nacke and his companions. Nacke charged Pena with being engaged in the difficulty between ■ the woman and the two men at the house, and denounced him. This was denied by Pena. One word brought on another, until it ended in a fight, in which all six engaged. The state’s theory is that appellant stabbed Nacke with his knife before Nacke and his crowd struck any blows. Appellant’s theory was that Nacke and his companions turned upon and assaulted him, knocked him down and struck him with rocks, and cut him with a knife. His left hand was broken, and his right hand cut or stabbed. The testimony shows that rocks were thrown, and appellant knocked down. The testimony indicates that the meeting may have been accidental. Appellant’s testimony is to the effect that after he was knocked down and was being beaten, and after being knocked down once or twice he got his knife from his pocket, opened it while the other parties were making assaults upon him and used it to defend himself but with no purpose or intent to kill.

Several bills of exception were reserved to the testimony with reference to the movements and actions of deceased and his companions prior to their reaching the scene of the fight between the woman and the two men on Matamoras street. These bills detail the testimony of the witnesses for the state with reference to their movements, going from street to street seeking various parties. We are of opinion this evidence was not admissible. Their movements would not affect the appellant.

There are bills of exception reserved to the introduction of evidence with reference to the fight between the woman and the two men on Matamoras street. As we understand the record, appellant was not connected with that fight. The state advanced the theory that Pena had something to do with it. This fight was gone into in prolix detail, showing that the woman and one of the men were Mexicans, and the man they were fighting was a white man about 19 or 20 years of age, and that the Mexicans were fighting him; that the officers came and arrested the woman and the white man and took them away. We are of opinion that the details of that matter were not admissible. If appellant was present, he was but an onlooker, and took no part in the fight. If any of this testimony was admissible with reference to the fight, it was by reason of the fact that Nacke accused Pena of participating in the fight. This accusation initiated the fatal trouble. Enough of that fight was introducible to explain Nacke’s accusation against Pena. Upon another trial the details of that trouble will not be permitted to go to the jury, and only so much of it as will serve to connect that matter with the later difficulty.

In this connection the court limited that testimony to motive for the killing on the part of appellant. We are of opinion this was error. .There is nothing in the testimony, so far as we have been able to discover, that would induce the belief that the trouble between the men and the woman served any purpose to show motive on the part of appellant in killing Nacke. There were no facts occurring at the time of either fight that would indicate that appellant had any reason to have animosity toward Nacke on account of the first fight.

The court charged the jury with reference to the testimony of Pena. 1 Pena had been indicted and acquitted for killing Nacke. He testified as a defense witness. The court charged the jury in regard to this as follows :

“The state was also permitted by the court to elicit from the witness Andres Pena that he had been indicted, tried, and acquitted for the killing of Carlos Nacke. I charge you that same was admitted by the court for the sole purpose of affecting the credibility of the witness Andres Pena testifying in this case, and you shall consider it for no other purpose.”

This character of evidence is admissible for impeaching purposes, but the jury should not be told that it does impeach. Such charge is upon the weight of the evidence. The charge should have been so given as to not suggest to the jury that it did affect his credibility. The jury should be left free to consider it for impeaching purposes, or as affecting his credibility. They might consider it for that purpose. The jury are the judges of the weight of the testimony and' the credibility of the witnesses.

The court failed to give a charge to the effect that, if the weapon used in the assault upon appellant was such as to produce a reasonable apprehension of death or serious bodily injury, they should regard such attack as being for the purpose of killing appellant or inflicting upon him such serious bodily injury. Article 1106, P. O. This was called for by the testimony. Appellant had been attacked by the deceased and his three companions; had been knocked down once or twice with rocks; his left hand broken, and his right hand cut. Appellant was entitled to this charge under the terms of article 1106, supra. The court did not so instruct the jury, and refused a charge specifically submitting this issue.

Appellant also requested the following charge:

“At the request of the defendant, I instruct you, as a part of the law in this case, that our statute provides: ‘Where a homicide occurs under the influence of sudden passion but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of homicide unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.’ So in this case I therefore charge you that, should you believe from the evidence that the defendant, Jesus Lozano, killed deceased, Carlos Nacke, by striking or stabbing the said Carlos Nacke with a knife, but you further believe from the evidence or have a reasonable doubt thereof, that the defendant, Jesus Lozano, was then laboring under the influence of sudden passion when he so killed deceased, if he did, and by the use of means not in their nature calculated to produce death and without any intent to kill, did then and there cut or stab Carlos Nacke with a knife, and did thereby inflict serious bodily injury upon the said Carlos Nacke, and not in self-defense as herein charged, you will find him guilty of an aggravated assault, and assess his punishment at a fine of not less than $25 nor more than $1,000 or imprisonment in the county jail for not less than one month nor more than two years, or both such fine and imprisonment.”

This charge was in response to the testimony. The issue of aggravated assault was clearly raised by the testimony. These parties, from the appellant’s standpoint, had made vigorous assaults upon him with rocks and their fists, and had cut one hand and broken the other. Under such circumstances detailed the statute clearly authorized and required this charge, for if appellant fought under the circumstances, not for the purpose of killing, but for the purpose of resisting the assault, he would not be guilty of punishable homicide. The issue of aggravated assault was an issue. The statute under which this charge was asked is to the effect that, the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears. Another statute directly applicable to this charge reads as follows:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.”

It was under this particular statute that the charge was requested. There is no question of the fact that the fight was exciting and rapid. There is no description of the weapon used by appellant as to its size, length, or deadly character. It may be inferred correctly that it was a pocketknife. Under such circumstances, if appellant was not acting in self-defense, he was entitled to a charge submitting the issue of aggravated assault. The difficulty occurred at night; the parties were attacking appellant, as already stated, when he used his knife. The testimony also indicates that he did not purpose to kill, but fought to free himself from his enemies. A special charge submitting this question was also requested and refused. The special instruction, after submitting the statute, included this clause:

“So in this case, if you believe from the evidence that the defendant killed the deceased and not in self-defense, and you further believe that the means used were not in their nature calculated to produce death, then you will find defendant not guilty of homicide, unless you believe there was an intention on the part of defendant to kill, and he was not acting in self-defense; but you could under the law find the defendant guilty of aggravated assault and battery, unless' defendant acted in self-defense, and in such case defendant could not be convicted of any offense.”

This excerpt is taken from the refused charge. The charge should have been given.

Appellant offered to prove by himself while on the witness stand the intent which actuated him during the difficulty, in substance, that he did not intend to kill, but only used the knife as a means of defense and for the purpose of freeing himself from the attack of his four assailants. The court refused to permit this testimony. This was error. A defendant, testifying in his own behalf, has a right to state his intent. The authorities sustain this proposition.

There was a witness named Saucedo used by the defendant. The state offered a confession made by Saucedo, or what purported to be a confession, supposedly to contradict or in some way impair the weight and standing of Saucedo before the jury. This confession or statement was in writing, purporting to have been made to Coy, chief of police. This appeared in the face of the written document. The confession was not made to Coy. He was not present at the time that it was made to other parties. The fact that Coy’s name appeared in the written confession as the party to whom it was made is accounted for by testimony to the effect that the police department had written confessions in blank printed by the wholesale, and Coy’s name appeared in all of these. The theory of the state was that in taking the confession they forgot to scratch out Coy’s name and insert the name of the party to whom it was made. This did not legally authorize the introduction of this testimony for any purpose. In order to use statements of a party under arrest, even for impeachment purposes, he must be warned according to the statute, and since the change in the law it must be in writing in conformity to the terms of the statute; otherwise it is not admissible. Appellant’s objection to this testimony should have been sustained.

There are other questions of kindred import to those discussed. These will not occur upon another trial, in view of what has been said as to those discussed. The argument of the prosecuting counsel should not occur upon another trial, and the application for a continuance may be met by the presence of the witnesses; if not, it will come in a different relation from what it now occupies.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENDER CAST, J., not sitting.
      i&wkey;For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    BURKHARDT v. STATE.
    (No. 4855.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. ARREST <&wkey;63(2) — Sheriffs and Constables >&wkey;>20 — Arrest Without Warrant— Authority of Officer.
    Where deceased, at a prior term, had been appointed in writing a deputy sheriff, and the sheriff continued him by oral appointment, and he acted as deputy continuously for a number of years and was generally recognized as deputy, he was a de facto officer, and under Vernon’s Ann. Code Cr. Proc. 1916, art. 262, could arrest without a warrant one who has committed felony and was about to escape.
    2. Homicide &wkey;>276 — Arrest Without Warrant — Authority of Officer — Questions for Jury.
    Whether a de facto sheriff killed by accused hhd received information warranting arrest of accused without warrant held for the jury.
    3. Homicide <&wkey;lll — Arrest Without Warrant-Knowledge of Officer’s Authority.
    Unless accused, who shot a de facto deputy sheriff, knew the capacity in which deceased was acting and his ground for making the arrest, he was not bound to submit to arrest without warrant.
    4. Homicide &wkey;>276 — Arrest Without Warrant — Knowledge of Officer’s Authority-Questions for Jury.
    Whether accused knew of the fact that deceased, who attempted to arrest him, was an officer, held for the jury.
    5. Homicide <&wkey;>lll — Arrest Without Warrant — Right to Arrest — Defense.
    If one arrested for offense was unaware of the officer’s official character and the officer had no time to disclose it, flight would not deprive the accused of the right to defend against an effort to recapture him.
    6. Arrest <&wkey;64^-PRiVATE Person — Necessity of Warrant.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 376, any person having reasonable ground to believe that property is stolen may arrest the offender and seize the property, whether he is an officer or not.
    7. Criminal Law &wkey;536 —Evidence—Confessions.
    Where accused in attempting to avoid arrest for burglary shot the deputy sheriff, his confession to the burglary after arrest on both charges was admissible in the prosecution for murder, if material.
    8. Criminal Law <®=»536 — Evidence—Admissibility.
    In prosecution for murder of deputy sheriff who attempted to prevent escape of accused after arrest for burglary, accused’s subsequent confession to the cx'ime of burglary was admissible on the question of motive.
    9. Criminal Law .&wkey;419, 420(11) — Hearsay Evidence.
    In prosecution for murder of deputy sheriff while preventing accused’s escape, evidence of third person, who had conversation with sheriff over the telephone at the request of deceased about the propriety of arresting accused, was inadmissible as hearsay.
    10. Homicide &wkey;>112(5) — Self-Defense — Provoking Difficulty.
    The right of self-defense is qualified under the law of provoking the difficulty, where the jury finds beyond a reasonable doubt that the accused intended to provoke the difficulty for the purpose of causing the deceased to attack, and thereupon to kill or do him serious bodily harm, and that in pursuance of such intention he used means reasonably calculated under the circumstances to bring about that result, and that a demonstration or attack upon him by the deceased was so brought on, and that the injury to the deceased was inflicted in pursuance of such original design to kill or to do serious bodily injury.
    11. Homicide <&wkey;300(7), 340(2) — Self-Defense — Provoking Difficulty — Prejudicial Error.
    In prosecution for murder of deputy sheriff who was attempting to prevent escape of accused after arrest for burglary, it was error to qualify the charge on self-defense by the issue of provoking the difficulty in the absence of evidence that accused fled, with the intent to provoke the difficulty, and the error is prejudicial.
    Appeal from District Court, Comal County; M. C. Jeffrey, Judge.
    George Burkhardt was convicted of murder, and he appeals.
    Reversed and remanded.

      Adolph Seidemann and W. W. Burnett, both of New Braunfels, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the murder of Alfred Eischer. The punishment was assessed at confinement in the penitentiary for 50 years.

The homicide grew out of the arrest of appellant. The deceased was a deputy sheriff. The homicide took place on the 10th of March, 1917. In December preceding, the house of one Leuders was burglarized and a watch and chain stolen. On the day of the homicide and a short time before the killing, the appellant was found by deceased in possession of the watch, which was identified by the owner and his wife, who were present. The sheriff instructed deceased to arrest appellant and release him on bail, otherwise to bring him to the county seat. The deceased told appellant that he would have to arrest him unless he gave bond. Appellant attempted to give bond, but failed. Deceased endeavored to assist him. According to the state’s evidence, appellant started to walk away fast. Deceased followed him, laid his hand on his shoulder, and said that he would have to arrest him and take him to New Braunfels. Appellant said he would not be arrested, and in the difficulty immediately following three shots were fired, one of which, according to the state’s theory, entered the leg of deceased and another his breast, producing a mortal wound. One Schlameus was present 'and claimed that after the first shot was fired he took hold of appellant and appellant ran, and as he ran Schlameus struck him with his fist. Appellant was pursued by the deceased and several parties who were present, including Leu-ders, the owner of the stolen property. As appellant was fleeing, deceased fired at him. Leuders, according to his testimony, was in front of deceased, and, after appellant had run about 100 yards in the direction of some brush near the end of the bowling alley, Leu-ders, according to his statement, spoke to appellant, who turned half around and fired two shots in the direction of his own head. Appellant fell on the ground at once after these two shots were fired, and at the same time deceased came up. Deceased’s brother also came and said to deceased that he was afraid that he had killed appellant. Deceased said, “No, he has killed me,” and pulled back part of his coat to exhibit the wound. He immediately fell and died. Appellant claimed that, after he had failed to induce his cousin to sign his bond, he sought permission to see his father, but that deceased and Schlameus took him back into the corner of a saloon and one of them grabbed each of his hands, and that as his left hand was grabbed he drew it out of his pocket with his pistol and fired a shot; that a struggle followed, and-he fired two more shots; that he was struck a lick by some one, managed to get loose, and run for fear they would kill him; that while running he heard a shot fired, which he supposed was fired at him; that he ran around the corner and alongside of the bowling alley, and before he got to the other corner saw a person with a gun drawn on him, and he raised up and fired a shot at him, and just then he stumbled, and as he hit the ground one shot was fired, by whom he did not know, and he then became unconscious. He says he did not know who the man was at the corner that he shot at, but that he fired because he was presenting a gun and he was afraid of losing his life. A doctor reached the scene a few moments later and found deceased, Fischer, in a dying condition from the wound that entered his breast. Appellant had scalp wounds on his head, apparently bullet wounds. There were four holes. Another doctor who examined appellant later said there were three wounds on his head, one of a different nature from the other two; that he removed part of a shell upon the head; that the outer bone of the skull was broken. Appellant claimed that when he was struck at the time of the scuffle he was hit with something hard, and his theory was that one of the wounds on his head was caused by this blow. The state’s theory was that all of them were self-inflicted. Appellant claimed that he was in possession of the pistol for self-protection, and that, as he could use it practically as well with his left as with his right hand, he carried it in his left-hand pocket, because it was likely that in the event of attack his right hand would be first disabled.

The court submitted the issues of murder, manslaughter, illegal arrest, and self-defense. Appellant, through special charges, objections to the court’s charge, and to the introduction of evidence, raises numerous questions touching the law of arrest as applied to the case. He claims that deceased was not an officer, and that the attempted arrest, being illegal, was an assault justifying his acts in firing his pistol at the time of the struggle. He claims, however, that the shots fired by him were not intended to kill, but to induce his release.

It appears that deceased had been acting as deputy sheriff for a number of years; that the sheriff, who was in office at the time of the homicide, had appointed him during the previous term; and that his written appointment was found in the clerk’s office. There was no written appointment during the subsequent term, though the sheriff testified he continued to act as deputy sheriff, and that he had in fact appointed him, though he has not filed his oath as required by law. Objection was made to proof of the subsequent appointment on the ground that the writing was not sufficiently accounted for. In view of the clerk’s testimony introduced by the state showing search for the document, we do not think the record shows error in this respect. There were a number of witnesses who testified that the deceased had been acting as deputy sheriff in the neighborhood of the homicide which was remote from the county seat for six or seven years, and was generally recognized by the public as an officer there. The fact of his so acting, and the other circumstances mentioned in connection with his appointment, we think, was sufficient to sustain the finding that he was an officer de facto. Ex parte Tracey, 93 S. W. 541; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Weatherford v. State, 31 Tex. Cr. R. 535, 21 S. W. 251, 37 Am. St. Rep. 828; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874 ; 29 Cyc. 1.374-1389; Branch’s Ann. P. C. § 1978. Article 262, Vernon’s Ann. C. C. P., is as follows :

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the person accused.”

We think under this statute with the information that the deceased had he was authorized to arrest the appellant. Cortez v. State, 47 Tex. Cr. R. 16, 83 S. W. 812; Hill v. State, 37 Tex. Cr. R. 415, 35 S. W. 660. What information he had received was a question for the jury. In passing upon the question raised as to whether appellant was resisting a legal arrest, his knowledge of the fact that the deceased was an officer was an element. In other words, unless it was shown that appellant knew the capacity in which the deceased was acting and his ground for the arrest, the appellant was not bound to submit to the arrest without warrant. Lynch v. State, 41 Tex. Cr. R. 513, 57 S. W. 1130; Tiner v. State, 44 Tex. 131; Mooney v. State, 65 S. W. 927; Cortez v. State, 43 Tex. Cr. R. 386, 66 S. W. 453; and other eases cited in Branch’s Ann. P. C. p. 1116. Appellant was a life-long resident of the community in which the officer acted, and whether appellant had knowledge of the fact that he was an officer was a question for the jury. If appellant was unaware of the official character of the deceased, the officer not having time to disclose it, appellant’s flight would not deprive him of the right to defend against an effort to recapture him. Miers v. State, 34 Tex. Cr. R. 186, 29 S. W. 1074, 53 Am. St. Rep. 705; Tiner v. State, 44 Tex. 128; note 66 L. R. A. 372; State v. Phillips, 118 Iowa, 684, 92 N. W. 876.

There is another statute, however, under which, the facts as to the theft being found as claimed by the state, the arrest of appellant would have been authorized without reference to the status of deceased as an officer. We refer to article 376, Vernon’s C. C. P., as follows:

“All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

See English v. State, 34 Tex. Cr. R. 199, 30 S. W. 233; Porez v. State, 29 Tex. App. 618, 16 S. W. 750.

The law of excessive force touching the acts of the deceased and those with him in making the arrest, and of the defendant in resisting it, was, we think, involved. Alford v. State, 8 Tex. App. 568; Condron v. State, 69 Tex. Cr. R. 513, 155 S. W. 253; Branch’s Ann. P. C. § 1980. These matters were dealt with in the charge of the court in a manner sufficient so far as its correctness is challenged by the objections made. There are some inaccuracies of which complaint was not made.

The complaint that the state was permitted to prove by the sheriff, after the arrest without warning, that appellant confessed the burglary, cannot he sustained. He was under arrest for both the burglary and the homicide. The sheriff’s testimony was to the effect that he confessed that he took the watch and at the same time a chain, giving the locality of this chain, upon which information the chain was found at the place designated by appellant. These circumstances rendered the confession admissible if material in this case. Branch’s Ann. P. O. § 63. The evidence was, we think, material in the homicide case, in that it tended to show motive and to rebut the appellant’s theory and testimony that the shots fired at the time of the arrest were fired with no intent to injure or kill the deceased. The state’s theory was that appellant determined to resist arrest, and fired the fatal shot immediately after the deceased laid his hand upon him. The defendant’s theory and testimony tended to show that the three shots which he fired at that time, or during the struggle, were not fired at the deceased, or at least that none of them were fired at his breast where the fatal wound was inflicted, but that that wound was given deceased at the time that he intercepted appellant in his flight and presented a pistol with which appellant believed the deceased intended to kill him. The fact that appellant was conscious of having committed the crime of burglary, and part of the stolen property was under his dominion, though not upon his person, might tend to aid the jury in solving the controverted question as to his intent in firing the shots at the time of the struggle.

The evidence of a conversation with the sheriff over the telephone, which was testified to by a witness who claimed that before the arrest he, at the request of the deceased, talked with the sheriff about the propriety of arresting appellant, we are inclined to think was .obnoxious to the rule of hearsay.

The court concluded, doubtless correctly, that the facts required him to charge the law of murder, manslaughter, and self-defense. The court qualified the charge on self-defense; in effect, informed the jury that if appellant hilled deceased to prevent serious bodily injury to himself, and quoting “if you do not believe from the evidence, beyond a reasonable doubt, that the defendant willfully and intentionally provoked said difficulty, if he did provoke it, for the purpose of using unlawful violence upon Alfred Eischer,” then they would find that the homicide was not unlawful. Exception was reserved in a proper and timely manner. The right of self-defense is- qualified under the law of provoking the difficulty, where the jury finds beyond a reasonable doubt that the accused intended to provoke the difficulty for the purpose of causing the deceased to attack and thereupon to kill or do him serious bodily harm, and that in pursuance of such intention he used means reasonably calculated under the circumstances to bring about that result, and that a demonstration or attack upon him by the deceased was so brought on, and that the injury to the deceased was inflicted in pursuance of such original design to kill or to do serious bodily injury. Branch’s Ann. P. C. p. 1134, and cases cited; Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792; Vernon’s C. C. P. p. 459; Wharton’s Crim. Ev. 604; Ruling Case Law, vol. 13, p. 831, §§ 136, 137; McDougal v. State, 185 S. W. 19.

This homicide appears to have grown out of the arrest of appellant, or his attempted arrest, by the deceased and others. Their prior relations were friendly. Prom the evidence of both the state and the appellant it appears that the deceased and others attempted to arrest appellant, or did arrest him, and after his escape attempted to recapture him, and that in one of the phases of the transaction the fatal shot was fired. We find nothing in the case, and counsel has pointed out nothing, which authorizes the submission to the jury of the issue of provoking the difficulty, and we think the court was in error in presenting that theory to the jury. Reese v. State, 49 Tex. Cr. R. 242, 91 S. W. 583; Burnett v. State, 51 Tex. Cr. R. 20, 100 S. W. 381; Smith v. State, 48 Tex. Cr. R. 203, 87 S. W. 151; Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092; Martinez v. State, 197 S. W. 872. This phase of the charge was probably harmful to the appellant both as to his theory of manslaughter as a defense against murder, and to his claim of self-defense. It was calculated to suggest to the minds of the jury and to impress them with the view that, in the opinion of the trial court, there was evidence which justified them in concluding that the appellant, before the transaction, formed the intent to injure the deceased and willfully shaped his conduct to provoke the deceased into attacking him that he might carry out his intent. Where the issue of self-defense is raised and submitted, its limitation by a charge on provoking the difficulty, without evidence to justify it, has uniformly been held prejudicial error, requiring a reversal. Thomas v. State, 40 Tex. 45; Humphrey v. State, 73 Tex. Cr. R. 433, 165 S. W. 589; Lockhart v. State, 53 Tex. Cr. R. 596, 111 S. W. 1024; Cook v. State, 43 Tex. Cr. R. 188, 63 S. W. 872, 96 Am. St. Rep. 854; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672; Walters v. State, 37 Tex. Cr. R. 390, 35 S. W. 652: Gilcrease v. State, 33 Tex. Cr. R. 630, 28 S. W. 531; Jones v. State, 17 Tex. App. 611; numerous cases listed in Branch’s Ann. P. C. § 1955.

The judgment of the lower court is reversed, and the cause remanded.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. j.

text:
    BECKHAM et al. v. BECKHAM.
    (No. 8064.)
    (Court of Civil Appeals of Texas. Dallas.
    March 9, 1918.
    On Motion for Rehearing, April 13, 1918.)
    1. Wills <&wkey;671 — Creation or Trust Estate.
    A will of testatrix’s property to her children, equally, named their paternal grandfather, a man of unquestioned character, as independent executor, and authorized him to take possession of the estate, “to sell and convey same, to invest any money that may come into his hands * * * and to execute all deeds of conveyance, acquittances and receipts necessary * * * to carry out the objects of this instrument.” The executor took charge of the estate and made necessary advancements from time to time for the maintenance, support, and education of the beneficiaries, who were minors, and submitted to a partition of part of the property to the eldest minor upon her marriage. Held, that although the will named no time for turning over the property to the beneficiaries, and the word “trust” was not used therein, it gave the executor the right to hold the property in trust until the debts of the estate were paid and until the minors became capable individually to receive the property.
    2. Executors and Administrators <&wkey;33 — Trusts <&wkey;162 — Resignation.
    Where one nominated by a will as independent executor was appointed guardian of estate of minor beneficiaries of the will after filing his application to probate the will but prior to admission of the will to probate and his appointment as independent executor, such appointment as guardian did not amount to a resignation of his executorship or trusteeship as to any of the beneficiaries under the will.
    3. Executors and Administrators &wkey;?90 — Independent Executors — Judicial Supervision.
    Independent executors have the right to manage and control estates without interference of the courts', unless necessity arises for the adjustment of some legal rights of others; such an executor being always subject to the jurisdiction of the courts when he departs from the law.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Action by J. J. Beckham, Jr., and others, against John J. Beckham, Sr. From the judgment rendered, the named plaintiff and others appeal.
    Affirmed.
    G. S. Bradley, of Groesbeck, for appellants. W. T. Jackson, of Groesbeck, and W. J. Bryant, of Wortham, for appellee.
   RAINEY, C. j.

We adopt the statement of the ease taken from the brief of appellants, as follows:

“This suit was brought and prosecuted by Helen Beckham Taylor, joined pro forma by her husband, Dave Taylor; J. J. Beckham, Jr., and Tracy Beckham, minors, by their guardian, J. B. Franklin; and Euola Beckham and Guy Beckham, minors, by their guardian, Martha Cotton, joined by her husband, Pat Cotton— against John J. Beckham, Sr., individually and as independent executor of the will of Hodges Beckham Taylor, deceased, for a construction of the will of said Hodges Beckham Taylor, for an accounting of his stewardship as such executor, and for possession and partition of the estate of testatrix, and, in a cause on appeal from the probate court to the district court which was consolidated with this cause upon trial, to settle the final account of John J. Beck-ham, Sr., as temporary guardian of plaintiffs. And upon a trial of the consolidated cause, before the court, without a jury, judgment was rendered in favor of Helen Beckham Taylor, granting her all the relief asked by her, and she is satisfied with the judgment, and does not .appeal. Judgment was also rendered upon the account on appeal from the probate court and upon the accounting by appellee, as such executor, of which no complaint is made by any one, nor does any one complain of the judgment awarding Mrs. Taylor partition and immediate possession of her inheritance. But the court construed the will adversely to the contentions of the minor plaintiffs and rendered judgment against them, denying them the possession of all their estate and awarding same to appellee until they respectively reach their majorities, and of this portion of the judgment only complaint is made on this appeal. 1 Motion for new trial was made by the minor plaintiffs and their guardians, and overruled and notice of appeal given. This case is brought here upon an agreed case on appeal, agreed to by all the parties and certified by the court.
“Conclusions of Facts.
“Hodges Beckham Taylor, testatrix, married Guy Beckham, who died September 1, 1914. She married Dave Taylor, June 13, 1915, and died December 15,1915. She left a will written August 17, 1900, which will is as follows:
“ ‘First. I give and bequeath to my children, Helen Beckham and J. J Beckham and to any other children that may hereafter be born to me, share and share a like, all my property of every kind of which I may die seized and possessed, real, personal, and mixed.
“ ‘Second. I appoint J. J. Beckham, Sr., of said county and state, father of Guy Beckham, my husband, independent executor of this my last will and testament.
“ ‘Third. I desire that no bond or other security shall be required of my said executor for the performance of his duties. I further direct and desire that no. probate or other court shall have any authority or control over my estate, or my said executor, except to appoint appraisers and to receive and have recorded an inventory and appraisement of the property belonging to my estate.
“ ‘Fourth. I hereby authorize and empower my said executor to take possession of any and all property belonging to my estate; to sell and convey same; to invest any money that may come into his hands in such way as he shall deem proper; and to execute all the deeds of conveyance, acquittances and receipts necessary or proper to be executed in order to carry out the objects of this instrument.’
“Testatrix left surviving her five children, only, Helen Beckham, who married Dave Taylor, September 18, 1916, and is now his wife, J. J. Beckham, Jr., now married and 18 years old, Tracy Beckham, now 16 years old, Euola Beckham, now 5 years old, and Guy Beckham, now 3 years old. She left an estate valued at more than $90,000. Appellee, J. J. Beckham, Sr., qualified as independent executor and took charge of the estate immediately after the will was probated. Appellee, upon his own application, was appointed temporary guardian of the persons and estates of all of the plaintiffs, and asked to be made permanent guardian thereof, and was appointed permanent guardian of the estate of J. J. Beckham, Jr., and qualified as such, but was later removed and J. B. Franklin was appointed guardian of the estates of both J. J. Beckham, Jr., and Tracy Beckham, and is still such; and Martha Cotton was likewise appointed and qualified as guardian of the persons and estates of Euola Beckham and Guy Beckham, and is still such guardian. None of the minors have any estate except that involved in this suit. * * * At the time of making the will in question, testatrix lived in Limestone county, Tex., where she continued to live up to a few months prior to her death, when she married Dave Taylor, and moved to McCulloch county, Tex. At her death the five children were all with her in McCulloch county, Tex.,, and J. J. Beckham, Sr,, who is the paternal grandfather of the minor appellants, filed the application to be appointed temporary guardian of said minors, including Helen Beckham, who is now Helen Beckham Taylor, in order that he might get possession of the persons of said minors and bring them- to Limestone-county, Tex., and get them out of the possession -of their stepfather, Dave Taylor, who is now the husband of Helen Beckham Taylor; she having married her stepfather shortly after the death of her mother, and after the probate of the will in question.”

The estate was indebted for about $12,000, which appellee has reduced some, leaving due at the date of trial about $9,000, which is secured by mortgages. Appellee has made some needed repairs on the property.

Opinion.

The first assignment of error complains of the action of the court, and is as follows:

“The court erred, to the prejudice of the plaintiffs, J. J. Beckham. Jr., Tracy Beckham, Euola Beckham, and Guy Beckham,. in the construction of the will and in rendering judgment against them denying them an immediate partition of their joint property; and in rendering judgment for the defendant, J. J. Beckham, Sr., to the effect that he should have and hold, manage, invest, and control, said property until these plaintiffs attain their respective majorities, before they may have partition of said property.”

The proposition thereunder is thdt:

“The will gives the property in fee simple and absolutely to appellants, without reservation or remainder in any one; it follows this provision with an attempt to create a trust in the same property in appellee for the use and benefit of appellants, hut fails to make provision for delivery of any of the property or the revenues thereof, to appellants at any time, and is therefore incomplete as a trust and fails in that respect for want of any direction for delivery of the property to the beneficiaries; and the beneficiaries took title under the will and are entitled to immediate possession.”

While the will is not quite as explicit as it might have been, yet we are of the opinion that it is so worded that its meaning is clear, and the intention of the testatrix when her surroundings and situation are considered is manifest. To arrive at the true intention of a party in making a will is one of the cardinal rules in construing a will and is to govern a court in its determination. In arriving at a just construction its language must he such that there appears therefrom what the maker desired to be done with the property mentioned therein. The will, unmistakably names her children as beneficiaries, who are to receive her estate. It ■names appellee as her executor, who is a man of unquestioned character, in whom she had faith and confidence; he being the father of her first husband. It gave him authority to take possession of her estate, “to sell and convey same, to invest any.money that may come into his hands in such way as he may deem proper, and to execute all deeds of conveyance, acquittances and receipts necessary or proper to be executed 'in order to carry out the objects of this instrument.” While the word “trust” is not used in the instrument* we think the language used clearly shows that she intended appellee to hold the property in trust by him until all the debts were paid and children reached the age when they were capable individually to receive the property. In the making of a provision that the property should not be administered by the courts, she evidently contemplated that the court would not appoint guardians for the minors, and the property be placed in their possession and control. It is true the will names no time for the appellee to turn over the property to the beneficiaries. They being minors, and not being capable of receiving, managing, and controlling it during their minority, it is easy to conceive that the appeillee would comply with his trust when they did reach their majority and be able to receive it. But it is contended that no provision was made for their maintenance, support, and education by the will. It can readily be conceived that appellee would use wjiat was necessary out of the estate for that purpose. It was shown that he made advancements to minors for that purpose, as he had the right to do, and as was expected of him-. He was related to them -by blood, being their grandparent, and testatrix considered him the proper person .to leave her estate with, he being a man of considerable wealth, of good character, and it is reasonable to suppose that she contemplated the estate would by his management and control be increased at the time of the majority of the beneficiaries, and their support and education looked after by him by providing out of the estate the proper funds. He made a proper account, which was approved by the court, about which no complaint is made, in this appeal. He claims no interest .in the property except as trustee. He has reduced the indebtedness of the estate and there are still debts unpaid. The elder minor having married and thereby entitled to her share, he readily submits to- a partition of part of the property to her.

On behalf of J. J. Beckham, Jr., it is submitted that:

“Where a person is independent executor of an estate and applies for and is granted guardianship of the estate of one of the beneficiaries under the will and qualifies and acts as such, it is tantamount to a resignation as such executor as to such beneficiary’s interest in the estate, and automatically transfers the estate to himself as guardian, and upon his removal as such guardian and the appointment of another, such other guardian is entitled to said estate, and it is the duty of such guardian to take possession of same.”

The facts show that J. J. Beckham, Sr., was appointed temporary guardian, and on April 10. 1916,- it was made permanent, and on April 25, 1916, he filed his report as temporary guardian of all the children. Nothing was done in the guardianship of J. J. Beck-ham, Jr., up to the filing of an application by J. J. Beckham, Jr., asking his removal and the appointment of J. B. Franklin in his stead; J. J. Beckham, Jr., being then over 14 years of age. On January 10, 1916, appellee filed an application in Limestone county to probate the will, said application being transferred to McCulloch' county, Tex., and admitted to probate on July 25, 1916, and appellee appointed independent executor under the terms of said will. He duly qualified as such.

There is nothing inconsistent in his actions as independent executor and guardian, as done herein, and appellee by such action did not resign his trusteeship, and the contention of appellants is overruled.

Independent executors have the right to manage and control estates without interference of the courts, unless a necessity arises for the adjustment of some legal rights of others. Of course, whenever he does not properly discharge his duties or violates his trust, he becomes amenable to the courts. He is always subject to the jurisdiction of the courts when he departs from the law.

Under the terms of the will herein, we think the court properly construed the will, and the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

In our former holding we held, in effect, that under the will appellee was appointed trustee of the estate and it was not subject to partition among the appellants until they had reached the age of 21 years. We are asked to modify this ruling so as to embrace the condition that, if the disability of either of the minors should be removed or the girl should marry, then either would be entitled to his or her distributive share of the estate. We presumed that would be the proper construction of our holding, as the law provides that if a girl marries or a minor’s disabilities are removed their legal status is thereby fixed and they would be able to receive and control their property as provided by law.

The motion for rehearing is therefore overruled.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J..

text:
    ST. LOUIS, B. & M. RY. CO. v. WEBBER.
    (No. 334.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 28, 1918.
    Rehearing Denied April 10, 1918.)
    1. Raileoads <&wkey;212 — Receivers—'“Obligations’ ’ — Negligence.
    Where court ordered railroad to take back its assets from the receiver with all the “obligations” of the receiver, the word “obligation” ineltided cause of action by an employé for injuries from negligence of the -receiver.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obligation.)
    2. Railroads <&wkey;212 — Negligence — Liability oe Company in Hands op Receiver.
    Receipt for property by railroad which “released and relieved” the receiver .“from all liabilities, claims, or demands and actions” was supported by a consideration and implied a promise to pay liabilities occasioned by .negligence of receiver, and could be sued on by injured employé.
    3. Appeal and Error- (&wkey;301 — Motion for New Trial — Change of Venue.
    Under court rules 24 and 70 (142 S. W. xii, xxii), rules 1 and 101a (159 S. W. viii, xi), and Vernon’s Say les’ Ann. Civ. St. 1914, art. 1612, overruling of a plea of privilege for change of venue cannot be reviewed where not set up in the motion for new trial.
    4. Damages &wkey;>132(l) — Amount—Injuries to Arm and Head.
    $6,500 was not excessive damages where arm was rendered useless, head and face were scarred, and brain affected, and 48 days were spent in hospital.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Action by Elbert Webber against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Bums & Logue, of Houston, for appellant. Presley K. ■ Ewing, of Houston, for appellee.
   BROOKE, J..

Elbert Webber sued the St. Louis, Brownsville & Mexico Railway Company on May 31, 1916, praying for damages in the amount of $20,000, on account of personal injuries sustained while in the employ of Frank Andrews, receiver of the assets and properties of defendant; it being alleged that such injuries were proximately caused by the negligence of the receiver, his servants and agents, and that the railway company was liable therefor.

The cause came on for trial before a jury on the 24th day of November, 1916, and was on November 27, 1916, submitted on one special issue touching only the measure of damages in the case. The verdict of the jury fixed the amount of damages at $6,500. On motion of plaintiff the court, on December 5. 1916, before the expiration of the term, entered judgment in favor of plaintiff, and against defendant, in the amount of $6,500, with interest and costs of court, defendant excepting to the order. In due time defendant filed its niation for new trial, and thereafter, under leave of the court, on December 4,1916, amended same. The said motion was in all things overruled by the court, and notice of appeal to the Court of Civil Appeals for the First 'Supreme Judicial District, at Galveston, was given. The Supreme Court has certified the case to this court, and it is now before us for revision.

The first assignment of error challenges the action of the court as being error in entering judgment in favor of the plaintiff: upon the jury’s verdict, for that, there being no evidence whatsoever’ to the effect that the receiver made any improvements or better-ments upon the defendant’s railroad, it also wholly fails to appear from the evidence that the railway company,' in reacquiring its properties after the discharge of the receive!, assumed any obligation to take care of the liabilities such as involved in this. suit.

The proposition under this assignment urges that the evidence is insufficient to indicate an assumption by the railway company in receiving its properties without sale from the hands of the receiyer of any obligation such as that sought to be asserted in this suit.

On the contrary, it is urged that the assignment is without any merit, for either of two good and sufficient reasons: (1) Because the statute in force now, and when the plaintiff’s cause of action arose, and prior to the receivership in question, affirms liability of the appellant on such cause of action; and (2) because the appellant, by itself, as well as by the decree directing the return of its property and assets, assumed the obligation evidenced by the plaintiff's cause of action.

It appears that the receivership was a friendly one, wherein the defendant appeared, waiving time, and consented to the appointment of Frank Andrews as receiver, to take over and operate its premises, and that it was pursuant to this consent action that such receiver was appointed, to wit, on July 5, 1913.

It further appears that by the defendant’s application for discharge of the receiver, filed April 14, 1916, under oath of its vice president, J. S. Pyeatt, it appeared that the defendant had financed and provided for the payment or taking care of the various demands against it so that the receivership had accomplished its purpose, and that it then, as a means of getting the property returned to it, stated to the court that it was “ready and willing to assume and able to pay all obligations incurred by said receiver of every kind whatsoever, and that, with this offer of payment, it requested and prayed that the property be delivered to it by order of the court,” subject to such terms and conditions as the court may impose, to secure the payment of the receiver’s obligations and the performance of the receiver’s contracts incurred by said receiver as such while administering the property of said railway company.

It appears further that by the order discharging the receiver it was directed that all of the defendant’s properties, rights, franchises, privileges, and immunities and all claims, demands, accounts, notes and bills of every kind and character whatsoever and wheresoever situated be delivered to it, and that the defendant so receiving back such property, its successors and assigns, should “take all of the benefits and assume all of the obligations” created by certain contracts entered into by the receiver under orders of the court, and should “especially assume all of the obligations of said receiver,” and should “pay off, satisfy, and discharge according to their terms, tenor, and effect all receiver’s certificates” and should “especially assume all of the obligations assumed by said Frank Andrews, receiver, under a certain specified contract with the Guaranty Trust Company of New York, trustee for the purchase1 of equipment.” •

It seems that by such order of discharge the court stripped itself of eyery item of property that could be made available for payment of the plaintiff’s claim, and retained jurisdiction only in the event the defendant failed to make payment of any amount which it “has assumed to pay, pursuant to the provision hereof, as and when the same shall hereafter become due and payable,” so that, if the plaintiff’s cause of action was not within the terms of the decree, there was no provision made for payment of such claim by reserved jurisdiction or otherwise.

After the defendant had given its receipt, on May 27, 1916, to the receiver for “all the properties, rights, franchises, privileges, and immunities of every kind and character whatsoever held, claimed, or possessed by him as receiver,” it passed at a regular meeting of its board of directors a resolution, to wit, June 6, 1916, whereby, in recognition of its obligation to pay such demands as the obligation in question, it formally acknowledged receipt from said receiver of all such property, and bound itself to him in the words, “and the said Frank Andrews, as receiver as aforesaid, is hereby released and relieved from all liability, claims, demands, and actions of every kind and character whatsoever, in so far as the St. Louis, Brownsville & Mexico Railway Company has the power to grant such release.” The plaintiff’s cause of action arose out of and during the aforesaid receivership of Frank Andrews of the properties of the defendant, for negligence chargeable to such receiver towards a servant, and is an unpaid liability of such receiver.

Nothing in the federal court’s order in this case granting a discharge of the receiver and the redelivery of the property held by the receiver hints at or suggests any immunity of the defendant from the recovery adjudged against it in ■ this case by the court below, but, on the contrary, provides for the liability here asserted. In our judgment, the recovery was proper against the defendant, under its assumed liability.

If the claim was within the terms of the order for payment by the defendant, then the reserved jurisdiction of the federal court as to it was cumulative only; if otherwise, there was no reservation of jurisdiction by the federal court as to it. If the word “obligation” can ever apply to a liability like that in favor of the plaintiff, resting as it did upon an implied term in the contract of service, it must be given that broader meaning here, because only by that means can a wrong be averted and justice be brought about. When it is considered that a valuable consideration was supplied in the redelivery of the property to the defendant by the court, through its receiver, Frank Andrews, the promise to the latter, necessarily to be implied, was sufficient to create an assumpsit in favor of the plaintiff against the defendant for the demand in suit, independent of the terms of the court’s order; for, as above stated, the defendant’s language whereby for receipt of the property it “released and relieved” the receiver “from all liabilities, claims, or demands and actions of every kind and character whatsoever” certainly implied a promise to pay all such liabilities, claims, demands, and actions, and under the decisions of this state a promise for a valuable consideration by one person to another for the benefit of a third party may be availed of by that third party.

We deem it unnecessary to go into this matter at greater length in this opinion, and therefore, without further comment, it is our judgment that the assignment must be overruled.

By the second assignment complaint is made that the trial court erred to the prejudice of defendant in overruling the plea of privilege in this cause, because, it appearing from the record and the undisputed evidence that the residence of plaintiff at the time of the accident in question was in Kingsville, in Kleberg county, Tex., and not in Harris county, Tex., which, in view of the provisions of the statutes of Texas controlling the venue of this suit, required that the cause be transferred from the district court of Harris county, Tex., to the district court of Kleberg county, Tex., or to some other county than Harris county, Tex., for venue.

Complaint is made to the consideration of this assignment of error as follows:

“We object to the consideration of this assignment of error, relating to venue, because the matter of which complaint is made in the assignment was not set up as a ground of error in appellant’s motion for new trial, and was clearly therefore under the Supreme Court’s rules for the district court, and under its rules for the government of the Courts of Civil Appeals, and under the statutes, to be deemed abandoned by the appellant, so that said assignment relating to the venue is not reviewable by this court.”
“Aside from the failure to present the question in the motion for new trial, the point cannot be here reviewed, because the bill of exceptions was not seasonably presented or filed, but several terms after the ruling was made.”

We shall not undertake to go into this matter at length, but will say that rule 70 for the district and county courts (142 S. W. xxii) is as follows:

“In motions for continuance, for the change of venue, and other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in unless presented in a bill of exceptions ; and the rulings thereon shall be made a ground of objection in motions for new trial or in arrest of judgment if they are desired to be relied on as grounds of error.”

Rule 101a (159 S. W. xi) promulgated by the Supreme Court for the district and county courts provides:

“In all cases in which a motion for new trial is filed, the assignments contained in such motion or amended motion as finally ruled upon by the trial court shall constitute the assignments of error. All errors not distinctly specified in such motion, or in the assignments of error where a motion for new trial is not filed, shall be waived.”

It is also provided in rule 24 for the Courts of Civil Appeals (142 S. W. xii; Harris Ann. Rules of the Courts, p. 19):

“The assignment of error must distinctly specify the grounds of error relied on, and distinctly set forth in the motion for new trial in the cause, and a ground of error not distinctly set forth in the motion for new trial in a cause, and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error.”

Rule 1 (159 S. W. viii), governing application for writs of error, provides:

“The decision, or ruling sought to be reviewed must have been assigned as error in the motion for new trial in the trial court, if such motion was made or required by law to be made, and such error must have been assigned and presented in the Court of Civil Appeals and in a motion for rehearing in the latter court.”

Vernon’s Sayles’ Texas Civil Statutes, vol. 1, art. 1612, provides:

“The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk’s office: Provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived.”

We are therefore of opinion that this assignment cannot be considered. Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; Levy v. Lupton, 156 S. W. 362; American Warehouse Co. v. Ray, 150 S. W. 763. The assignment therefore is overruled.

The third assignment complains of the action of the lower court in overruling and in not granting the amended motion for new trial upon the grounds presented in paragraph 1 for said motion, which reads as follows:

“The verdict of the jury in the amount thereof is grossly excessive and evidences not a fair consideration of the testimony bearing upon the measure of damages, but rather prejudice, bias, or some other improper motive.”

It appears from the testimony in this case and from plaintiff’s evidence that when he was injured they took him over to the army camp and dressed him, and that he was thereafter taken to the depot; thence he was taken to Kingsville to tlie defendant company’s hospital, where he remained for 28 days; that the collision was about 7 o’clock at night; and thatl it was before or after 12 o’clock that night before he reached, the hospital at Kingsville. Plaintiff testified that when he could get a job he always worked, and that when he saw the company’s doctor, Dr. Shelton, at Kingsville, his arm was then crooked, and that he found that it was crooked when they took it out of plaster of paris. He testified:

“Dr. Shelton worked on my arm when I was in the hospital about 18 days, and he took it out and put it on the X-ray, and said, ‘It is a little crooked, and I will have to. straighten it over ;’ and I told him, ‘Well, all right,’ he could straighten it over; and .he went in there and got several men and got hold of me, and I laid my arm up on the table there, and they worked on it, pulled it until it popped, and then he put it back in plaster of paris. I don’t know whether he just disconnected it from the way it was, and caused it to be like it is, or not; I don’t know anything about that. I could not tell by that whether or not he is considered a good doctor. I can’t see nothing he done so great for me. But, at any rate, he was their doctor at the hospital.”

The plaintiff’s arm was rendered practically useless on account of its condition, having an ununited fracture of both bones of the forearm. The hearing in one of his ears is destroyed. He suffered severe contusions and lacerations on several different parts of his head and face that had to be sewed up, leaving scars on his head and face. His teeth were shelled and knocked out. “The army doctor sewed my head up; the scars are in it wliere he sewed it; where it busted open on the side, he sewed that, and over this eye here, and under this eye here.” He also suffered a very severe concussion of the brain by reason of the licks received: on\ his head, so that, 'as he says, he has “just loud or a roaring and continuous headache,” and that by reason of the condition of his head “the least thing frustrates me and gets me half crazy.” The loss of the use of his arm and the loss of hearing in his ear, which he says is “roaring and hurts me all the time,” justifies the verdict, and, as no improper conduct was shown on the part of the jury, the case, in our judgm'ent, must necessarily be affirmed.

It is so ordered.
      <§us>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    EL PASO BANK & TRUST CO. v. FIRST STATE BANK OF EUSTIS.
    (No. 817.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.
    Rehearing Denied April 11, 1918.)
    1. GUARANTY -&wkey;27 — CONSTRUCTION.
    The language of a guaranteeing telegram and the circumstances surrounding the parties at the time it was sent will be looked to in determining the parties' intention.
    2. Guaeanty @=336(2) — '“Absolute Guaranty on Payment.”
    Where a bank telegraphed a bank at place of seller’s residence that “we guarantee payment $300 by” a named “produce company for carload watermelons,” neither bank being a party to the contract of sale of the carload between the seller and the produce company, the guaranty contract was one of absolute guaranty of payment, rather than a guaranty of its collection ; a guaranty of payment of an 'obligation without words of limitation or condition being construed as an absolute guaranty.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Absolute Guaranty; Guaranty of Payment.]
    3. Guaranty <&wkey;78(l) — Absolute Guaranty —Defenses.
    Where a bank absolutely guaranteed payment of $300 for a carload of watermelons by a produce company, the guaranty not referring to the contract of sale, it was no defense to suit on the guaranty that the.car was not shipped within the time agreed upon between the seller and producp company, or that the melons were not up to the agreed standard in weight or quality.
    4. Banks and Banking <&wkey;261(3) — Ultra Vires.
    Where a bank, on faith of guaranty by another bank of payment by a produce company of a certain sum for a carload of melons, permitted the seller thereof to withdraw the guaranteed sum from the bank, the guaranteeing bank could not, in action on its guarantee, plead that the contract of guaranty was beyond its charter powers.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Action by the First State Bank of Eustis against the El Paso Bank & Trust Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Goldstein & Miller, of El Paso, for appellant. Russell & Gillett, of El Paso, for ap-pellee.
   WALTHALL, J.

This suit was brought by appellee against appellant to recover $300, based upon a code telegram, sent by appellant to appellee on June 7, 1915, which telegram, when translated, reads as follows:

“First State Bank, Eustis, Fla. We guarantee payment three hundred dollars by Texas Produce Company for carload watermelons. [Signed] El Paso Bank & Trust Co.”

The message was duly received by appel-lee at Eustis, Fla., on the above date. Ap-pellee alleged that appellant, by reason of the message, became bound to pay to appel-lee $300 for one carload of watermelons, whenever the same should be delivered to the Texas Produce Company, or be tendered to it, and that the said promise was an absolute and unconditioned agreement to pay said sum whenever said carload of watermelons had been delivered to the Texas Produce Company, or tendered to it, and that said melons were shipped and tendered to the Texas Produce Company, as follows:

On or about the 16th day of June, 1915, S. B. Sligh & Co., of Eustis, Fla., delivered to the railroad company at .Eustis a carload of watermelons, consigned to the order of S. B. Sligh & Co., “Notify Texas Produce Company, at El Paso, Texas,” to be delivered to the Texas Produce Company upon the payment of the value thereof, in the sum of $300; that on the 16th day of June, 1915, the shipper drew a draft on appellant in favor of appellee for the sum of $300, and attached the draft to the bill of lading and sent same to appellant for collection, and that payment was refused; that appellee placed said amount to the credit of S. B. Sligh & Co., and, ¡believing that appellant would pay same, permitted S. B. Sligh & Co. to withdraw said amount from its bank.

Appellant answered by general demurrer, denied that it ever authorized S. B. Sligh & Co. to draw the draft in question on it, or that S. B. Sligh & Co. had any authority so to do. Appellant further pleaded that said telegram was sent under the following conditions :

That on or about June 5, 1915, W. H. Constable Company were acting in El Paso as the brokers for S. B. Sligh & Co., and, on said date, acting as such brokers, sent to S. B. Sligh & Co. the following telegram:

“Texas Produce Company this city offers three hundred dollars, car thirty thousand pounds Tom Watson melons twenty-five pounds average for shipment Monday. Confirm if possible and we will have Bank wire guarantee. Rush answer.”

That S. B. Sligh & Co. received said telegram, and on June 7th replied to W. H. Constable as follows:

“Accept Texas Produce Company offer. Bank guarantee First State Bank, Eustis, Florida.”

That thereupon W. H. Constable Company wired S. B. Sligh & Co., at Leesburg. Fla., as follows:

“Ship Texas Produce Company today as per your telegram; their bank wiring your bank the necessary guaranty. Trace shipment.”

That on the 7th day of June the W. H. Constable Company sent to S. B. Sligh & Co. the following telegram:

“Wire routing and car number of Texas Produce car.”

That the telegram of guaranty was sent, purely as an accommodation to the Texas Produce Company, and without anything of value whatever moving to appellant. That under said contract, it was the duty of S-. B. Sligh & Co. to ship said melons on June 7th, and to ship 30,000 pounds in said car, and that time was of the essence of the contract, but that S. B. Sligh & Co. did not ship the same until the 16th or 17th day of June, and that said car when shipped contained only 24,-000 pounds, and that by reason thereof the Texas Produce Company was not bound to take or pay for said melons — that under said telegram appellant became bound only in the event the car of melons was shipped within the time, and contained the weight provided for in the contract, and in the event the Texas Produce Company became liable under said contract to pay for same' and failed to do so.

Appellant further alleged that prior to the time the said melons were shipped the Texas Produce Company and W. H. Constable Company had repudiated said contract on account of its breach by S. B. Sligh & Co., appellant alleging that said telegram in itself, and the bill of lading for said car of melons, put the appellee on notice and charged it with knowledge that appellant became bound on said telegram only in the event the Texas Produce Company became bound and failed to pay for the melons.

Appellee by supplemental petition excepted to the appellant’s answer, in which it stated the circumstances and conditions under which the guaranty telegram was sent, as shown in the second telegram above set out. The grounds of the two exceptions are: First, the cause of action is based upon an absolute and unconditional guaranty in writing made by appellee to plaintiff for the sum of $300, that the terms of said guaranty are unambiguous, and the answer varied the terms of the guaranty telegram and ingraft-ed conditions not embraced therein, and not necessary to a complete understanding of it; and, second, the answer pertained exclusively to • transactions had between the W. H. Constable Company and S. B. Sligh & Co., with which plaintiff is in no way connected, and which could in no way affect its guaranty. Appellee further answered, but we need not more fully state the answer at this time. The trial court sustained the two exceptions to the answer, heard the evidence on the remaining issues, and rendered judgment for appellee.

Appellant, in its first two assignments, insists that the court was in error in sustaining the two exceptions to its answer. The proposition, common to the two assignments, is that under the facts pleaded by appellant the Texas Produce Company, the buyer, never became liable to pay for the carload of watermelons, the contract for their purchase having been breached by the seller, and the purchaser not being liable, the appellant, guarantor, was not liable.

The opposing contentions of appellant and appellee might be summarized thus: Appellant contends that the telegram it sent to the appellee bank was but a collateral undertaking for the Texas Produce Company which stood first bound to pay for the melons; that until there was a liability on the part of the Texas Produce Company, its principal, and a default in the payment, there was no liability, and could be none on its part.

Appellee’s contention is that the liability of appellant is not dependent upon the liability of the Texas Produce Company to pay for the melons; that the telegraphic guaranty which is the basis of the suit was the \toluntary, independent, and personal act of appellant in which it absolutely and unconditionally and immediately guaranteed to pay appellee tlie sum of money specified for one carload of watermelons.

Two propositions seem to be presented: Eirst, is the telegram, “We guarantee payment three hundred dollars by Texas Produce Company for carload watermelons,” an absolute, unconditional, and present promise by appellant to pay the sum of money specified, or a collection therefor? and, second, to what extent could appellant make inquiry into the facts and circumstances attending the making of the contract between the buyer and seller of the melons, and the performance or nonperformance of the contract of purchase of the melons, as a defense under his promise, conceding that the words constitute an original, absolute, unconditional, and present promise to pay?

If the promise is an original undertaking, absolute and unconditional, it is outside of and not controlled by articles 1843 or 6336, Revised Statutes 1911. The language used in the guaranteeing telegram and the circumstances surrounding the parties at the time it was sent will be. looked to in determining the intention of the parties to the writing. Friedman-Shelby Shoe Co. v. Davidson, 189 S. W. 1029.

The telegram was sent from the appellee bank to appellant bank, neither being parties to the contract of buying or selling the car of melons. The language of the telegram indicates a present promise of payment of the amount stated by the Texas Produce Company for a stated article of merchandise, a carload of melons. There is no condition or contingency suggested upon which the payment is to be made. To read any condition or contingency into the wording of the message which the law does not put into it would, in our opinion, make for the parties a contract they did not make for themselves. If the appellant intended to absolutely guarantee the payment of the money by the Texas Produce Company, and to indicate or identify the transaction or the thing for which the payment was to be made, how else could it word the telegram and state it in more definite language? We conclude that the telegram is an absolute guaranty of the payment of the money,, rather than a guaranty of its collection. Section 111, Brandt on Suretyship, and authorities there cited. A guaranty of the payment of an obligation without words of limitation or condition is construed as an absolute guaranty. Ruling Case Law, vol. 12, p. 1064.

If we are not in error in so holding, it seems to us that if the appellant could defend against the appellee’s suit by showing that the car of melons was not shipped within the time agreed upon between the buyer and seller, or that the melons did not come up to the agreed standard in weight or quality, would, in effect, indirectly, put into the guaranteeing telegram a condition which appellant did not write into it, and which the law does not imply. Such defense would make the promise to pay a conditional one.

The rule is stated to be general that in case of an absolute guaranty, no demand upon the principal debtor is necessary. 20 Cyc. 1459. It is not treated as a collateral liability, but is a primary and positive agreement, and the breach of the principal’s contract to pay the sum promised ipso facto imposes upon the guarantor a complete liability. There was nothing in the telegram itself or in the bill of lading for the car of melons that tended to charge appellee with notice or knowledge of the contract between the seller and buyer, or of its breach by S. B. Sligh & Co., as alleged in the answer.

There was no error in the court’s sustaining the two exceptions to the answer, and the two assignments are overruled. What we have said in passing upon the first two assignments necessarily disposes of the remaining assignments, except the ninth.

By the ninth assignment it is claimed that the guaranty was without consideration to appellant — was purely an accommodation to the Texas Produce Company, and was beyond the power of appellant bank to make same, and was void. We think the case of Bond v. Terrell Manufacturing Co., 82 Tex. 309, 18 S. W. 691, and the authorities there used, is,an answer to the contention. In this case the appellee bank on the faith of appellant’s guaranty permitted the sum guaranteed to be withdrawn from its bank, and we think that, under the authorities cited, it will not now be permitted to plead that on entering into the contract it exceeded its charter powers.

Finding no reversible error, the case is affirmed.
      <©c»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HUGHES-BUIE CO. v. VASQUEZ.
    (No. 828.)
    (Court of Civil Appeals of Texas. El Paso.
    March 28, 1918.
    Rehearing Denied April 18, 1918.)
    Trial &wkey;339(4) — Verdict — Reassembling Jury. „
    „ The authority to reassemble a jury fra the correction of informal and defective verdicts is very limited under Rev. St. arts. 1980, 1981, and does not permit reassembling after separation of four days and allowing it to reverse its findings upon vital issues of fact.
    Appeal from District Court, El Paso Cotmty; Ballard Coldwell, Judge.
    Action by Martin Yasquez against the Hughes-Buie Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    S. P. Weisiger, of El Paso, for appellant. J. E. Quaid and Coldwell & Sweeney, all of El Paso, for appellee.
   Statement of Case.

HIGGINS, J.

Appellee brought this suit to recover damages sustained through personal injury. The case was submitted to a jury upon 24 special issues. The record discloses the following:

The case was submitted to the jury on Saturday, May 19, 1917, and at 6 p. m. upon said date the jury returned into open court its answers to the issues submitted. The court inquired of the jury if it had rendered a verdict, and was advised by the foreman that it had. The court ordered the clerk to read the verdict. The clerk thereupon received the verdict from the foreman and in open court read the same aloud and inquired if same was its verdict, and the jury assented. Counsel for the parties was not then present. The court then stated to the jury that they would be excused from further consideration of this case unless it should appear that their verdict was inconsistent. The court did not state to the jury it was discharged, but did state to the jury that they would be excused from further consideration of the case unless it should appear that the answers returned were inconsistent, and that the jury need not return unless called back. No notation or minute was entered on the docket that the verdict had been received or a verdict returned; that said jury then left the courtroom and dispersed; that the clerk then asked the court what he should do with the verdict, to which the court replied, “File it.” And the clerk thereupon, in obedience to said order of the court, then indorsed the file mark on the verdict, although the court states in open court that in so instructing the clerk to file the verdict it was not the intention of the court to thereby accept said verdict, but only to preserve the answers so returned by the jury among the papers of the case.

On May 23, 1917, the court reassembled the jury and instructed them that the answers theretofore returned were in some cases contradictory and inconsistent, and to therefore retire, consider the questions propounded, and return their answers. The jury thereupon retired and returned another verdict. This second verdict completely reverses the findings made in the first verdict upon seven issues vital to the plaintiff’s case. Upon the findings first made to these issues, a judgment for plaintiff could not be rendered. The defendant objected to the reassembling of the jury and resubmission of the questions to it.

Upon this last verdict judgment was rendered in favor of plaintiff, and the defendant appeals. It is admitted by both sides that the answers returned on May 19th were inconsistent and contradictory.

Opinion.

In some instances, trial courts have authority to reassemble a jury for the correction of informal and defective verdicts and verdicts not responsive to the issues submitted. Articles 1980, 1981, R. S. But this authority is very limited. Certainly it does not go to the extent of permitting a jury to he reassembled after separating for four days and allowing it to completely reverse its findings upon vital issues- of fact.

The verdict returned on May 19th was in no wise informal. The answers to the seven questions upon which the findings were reversed were in no wise defective. They were responsive. This second verdict upon the facts stated cannot be permitted to form the basis of a judgment against appellant. The reasons are well stated in Salinas v. Stillman, 25 Tex. 12. See, also, Railway Co. v. Giersa, 50 S. W. 1039.

The fourth assignment is without merit, there being nothing to show that the Southwestern Surety Company, of Denison, Okl., was authorized to write workmen’s compensation. insurance in this state.

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