author: SWEARINGEN, J.

text:
    NUECES VALLEY IRR. CO. v. HOWARD.
    (No. 6080.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    Waters and Water Courses <&wkey;254 —Irrigation — Duty to Pump.
    A decree of the board of water engineers that an irrigation company be not required to furnish any land with water which cannot be supplied by gravity flow from the canals of the company does not absolve the company from its duty of furnishing water to its canals, but does absolve it from again pumping the water from the canals onto the lands to be irrigated.
    2. Waters and Water Courses <&wkey;254^-In-rigation — Duty to Pump.
    An irrigation company, being a quasi public concern, vested with the power of eminent domain and obligated to furnish water for irrigation, must, when water in its reservoir is so low as to prevent the flow to its canals by gravity, supply such water to its canals by pumping.
    Appeal from District Court, Dimmit County; J. F. Mullally, Judge.
    Bill for injunction by R. S. Howard against the Nueces Valley Irrigation Company. From a decree for plaintiff, defendant appeals.
    Affirmed.
    A. C. Bullitt, of San Antonio, for appellant.
    N. A. Rector, of Austin, for appellee.
   SWEARINGEN, J.

This is an appeal by the Nueces Valley Irrigation Company from a temporary mandatory injunction in favor of R. S. Howard, the appellee, requiring the appellant to furnish water to appellee for the purpose of irrigating 150 acres of land.

The petition of appellee alleged that appellant is a corporation organized under the Texas statute as a public irrigation comr pany, and that appellee was a person entitled to be furnished with water for irrigation, because he had a possessory right in the 150 acres of land which was contiguous to the Nueces river, where the company’s reservoir was constructed by a dam across the river, and because appellant was the grantee of a permanent'water right conveyed to him by grantees of the Nueces Valley Irrigation Company itself. It further appears from the petition that the company had an abundance of water to furnish appellee, and was equipped with pumping facilities to put the water into its canals, through which it could flow onto appellee’s land. The land is fully described. Allegations of threatened injury,’ unless the injunction issued, are abundant.

The defense presented by appellant’s answer seems to be to admit that there is sufficient water in its reservoir, but that appellant is not required to furnish the water by pumping it out of its reservoir into its canals for appellee’s use, but its public duty is fully performed if it permits the water to flow by gravity from its reservoir into the canals, concerning which it alleges that because of drought the water, while sufficient, if pumped from the reservoir, is lower than the outlet canal and will not flow. It is also averred that appellee forfeited his water right by reason of nonuser for a period of 4 and 10 years.

The evidence introduced sustained the judgment of the trial court.

As is permitted by law, no briefs were filed by either party; consequently we have strolled “ad libitum” through the record, seeking for error of the trial court. The only controverted issue that we can find of sufficient importance to justify the appeal is tha£ indicated in our general statement of the pleadings, namely, that appellant contends that its public duty requires it to furnish appellee with water only when there ii enough water in its reservoir to run into tin company’s canals by gravity, but that it is not required to pump the water into itá canals from its reservoir, when the level of the water in the reservoir is below its outflow canals. It seems conceded, as above stated, that there was no lack of water in the reservoir, but that it had to be pumped.

This contention of appellant seems to be based upon an erroneous construction of the decree of the board of water engineers, from which no appeal was taken. The clause of the decree is:

“It _ is further ordered that nothing herein contained should be construed as requiring said company to furnish any lands with water which cannot be supplied by gravity flow from the canals of said company.”

The above decree does not absolve the company from its duty to put water into its canals from its reservoir, but does, by the? restriction quoted, exempt the company from pumping the water from its canal onto such of appellee’s lands as are so elevated above' the canals that the water furnished through the canal will not flow by gravity onto the land. In other words, the decree is that the company will not be required, after furnish-, ing water in its canals from its reservoir, to. again lift the water out of its canals and put it onto appellee’s lands. This decree does not destroy the company’s duty, laid upon it by the law, to furnish the water into its canals.

The irrigation corporation is a- quasi public concern, vested with the power of eminent domain, and obligated to furnish water to appellee for irrigation. This public duty can be performed only by appellant supplying its canals with water from its reservoir. This can be done either by gravity or by pumping. If gravity fails, pumping must be resorted to. Borden v. Rice & Irrigation Co., 98 Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640; American R. G. L. & Ir. Co. v. Mercedes Power Co., 155 S. W. 286.

The judgment is affirmed.
      (@=vFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    MOORE v. STATE.
    (No. 5140.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    1. Indictment and Information &wkey;>166 — Allegation as to Matters Unknown.
    To justify indictment alleging that defendant received property from some person to the grand jurors unknown, it must be shown that grand jury did not know, and could not have ascertained by "reasonable diligence, from whom alleged stolen property was received by defendant.
    2. Indictment and Information <&wkey;184 — Variance.
    The state having alleged that property was received from some person to the grand jury unknown, it was necessary to prove it.
    3. Indictment and Information <g=»171 — Issues, Proof, and Variance.
    A conviction cannot be authorized for an offense not set forth in the indictment.
    4. Criminal Law <&wkey;1144(3) — Finding Indictment Without Facts — Presumption.
    It will not be presumed that grand jury found indictment without facts, especially where one of grand jurors testified to their investigation.
    5.. Criminal Law <&wkey;814(l) — Instructions— Issues.
    The charge of the court must conform to the charges contained in the indictment.
    6. Criminal Law <&wkey;1056(l) — Instructions —Exceptions—Fundamental Error.
    It is error of a fundamental nature to authorize a conviction for any other offense than that charged, whether there was an exception reserved or not to the action of the court in so charging.
    Appeal from District Court, Dallam County; Reese Tatum, Judge.
    Bill Moore was acquitted of theft as charged in the first count, and convicted of receiving stolen property alleged in the second count, and he appeals.
    Reversed and remanded.
    A. M. Mood, of Amarillo, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State..
   DAVIDSON, P. J.

Appellant was acquitted of theft as charged in the first count, and convicted of receiving stolen property alleged in the second count. This count alleged that appellant received the property from some party to the grand jurors unknown.

In order to justify this character of pleading, it is necessary that it be shown that the grand jury did not know, and could not have ascertained by reasonable diligence, from whom the alleged stolen property was received. The evidence bearing upon this phase of the ease came from the witness Spencer. He was a member of the grand jury which returned the indictment, and was secretary of that body. He says:

“In deliberating on tbe evidence in that case, before the finding of the indictment, the grand jury did not ascertain the name of any person i'rom whom Bill Moore might have or did receive the cattle with which tbe grand jury by this bill of indictment charged him with the tbeft of, subsequent to the taking of such cattle from the Jennings’ ranch. We used all the diligence, and from the evidence we could gather, to ascertain the name of that person; used all the evidence we could gather. I mean by that that we used all sources of evidence at hand and that we could investigate, and from that I state that I did not ascertain the name of that person, if any, from whom Bill Moore might or did receive the cattle. As to whether or not in fact I don’t know whether he did receive any from this said person or not, I will say from the information we gathered he did; yes. But we couldn’t tell who it was. We had no evidence to show who it was; nobody ever did call bis name or nothing. As to us not being positive whether he did receive this stuff from tbis said person or not, we didn’t say that we found any one that he had received it from.”

This is tbe evidence in tbe record, in regard to this matter.

There is evidence which shows at the time that appellant’s brother is supposed to have taken the property, or at the time the state relied upon to show that his brother took the property, appellant was not with him, but was miles away from tbe scene of the supposed taking. This seems not to have been .controverted’. Upon bis arrival at home at night the animals were in a pen at appellant’s mother’s residence, and had been placed there by his brother. The next morning, appellant was requested by his brother to assist him in driving the cattle from that point to a pasture belonging to Mr. James, a number of miles away, Mr. James being one of the alleged owners. Complying, with this request, appellant assisted his brother in driving these cattle to Mr. James’ ranch, where they were put in a pen or corral, and where they remained for some time. There is evidence also showing that the cattle were driven to the James ranch to be delivered to Rube Johnson, who was foreman of Mr. James on this ranch. Johnson at the time was in Kansas City, Mo., with a shipment of cattle belonging to bimself and Mr. James. The cattle were unbranded. Two of ' them, however, were marked. A witness testified he assisted later in changing the marks on these two cattle at the James ranch. Appellant seems to have been present when the marks on the cattle were changed.

The state’s case, therefore, is one of circumstantial evidence.

The evidence for the defendant is positive that he was not connected with taking the cattle, and that the cattle had been placed in a pen by his brother in appellant’s absence. This testimony is mentioned because it bears upon the question of the action of the grand jury in failing to charge the name of the party from whom the property was received, if stolen, and also upon the fact of a fraudulent receiving from his brother, if the facts-should be sufficient to constitute that offense as well as upon the Charge of the court. The jury found tnat appellant was not present at. the taking by acquitting him of theft. In. tbis condition of tbe record the trial jury must have found that, because appellant assisted his brother in driving, the cattle, he-was guilty of receiving them. The grand jury must have known, under the facts of this record, at the time of finding the indictment, of appellant’s connection with his brother in driving the cattle, because the state’s case is based upon those facts, and this seems to be also true in connection with the testimony of Spencer.

The state having alleged that the property was received from some party to the grand jurors unknown, it is necessary to prove this, and to do so they introduced the witness Spencer, whose testimony has been given. The jury should have been instructed that if the grand jury knew, or could have known by reasonable diligence, from whom the cattle were received, they should acquit. Under that theory, if they knew, or could have known, the evidence would not have sustained the allegation that they were received from some unknown person. Submitting the issue of receiving the stolen property, the court thus instructed the jury:

“You are further charged that if you find and* believe from the evidence beyond a reasonable doubt that the red, bald-face Hereford calf was stolen, but you have a reasonable doubt as to whether the defendant stole the said red, bald-face Hereford calf, you will acquit the defendant of the theft of said red, bald-face Hereford calf; but if you find and believe from the evidence beyond a reasonable doubt that the said red, bald-face Hereford calf was stolen, and you find and believe from the evidence beyond a reasonable doubt that the defendant received said red, bald-face Hereford calf after it was so stolen (if you find it was stolen), and that at the time he received said red, bald-face Hereford calf (if you find he did receive it), that the defendant knew that said red bald-face Hereford calf was stolen, or that the defendant concealed said red, bald-face Hereford calf, knowing it to be stolen, you will find the defendant guilty of receiving stolen property, and assess _ his punishment at confinement in the penitentiary for not less than two nor more than four years.”

This is all the charge given by the court with reference to receiving the cattle. It will be observed this does not comply with the count charging the reception of the cattle from an unknown owner, but it left the jury to find him guilty if he received it from any one, known or unknown. We think this charge is fundamentally wrong.

A conviction cannot be authorized for an offense not set forth in the indictment. If the grand jury did not know, or could not ascertain by reasonable diligence, from whom the cattle were received, it is proper to make such allegation, but that is the case charged in the indictment. In order to obtain a conviction under such allegations it must be shown and the charge must limit the consideration of the jury to such state of ease.Under the court’s charge appellant could have been convicted for receiving the cattle from any one, known or unknown. They may have convicted, and doubtless did convict, him on the theory he received the cattle from his brother. If so, the grand jury knew that, because they had all the facts with reference to the case before them as they related to the possession of the cattle and the delivering of them at the James ranch. They knew in developing the case that defendant was with his brother, and this is shown by their action in charging theft and receiving stolen property as well as by the evidence.

It is not to be presumed that the grand jury found an indictment without facts, and especially in this case, because Spencer testified to their investigation of these matters.

Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of ;facts other than those which support the finding of the truth of the indictment.

It is error Of a fundamental nature to authorize a conviction for any other offense . than that charged, and this is true whether there was an exception reserved or not to the action of the court in so charging the jury. Grant v. State, 59 Tex. Cr. R. 123, 127 S. W. 173.

Eor the reasons indicated this judgment will be reversed and the cause remanded.
      (g^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    WILLIAMS v. STATE.
    (No. 5200.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Bail <&wkey;64 — Appeal — Recognizance — Necessity.
    In onder to give Court of Criminal Appeals jurisdiction of appeal from misdemeanor conviction, a recognizance must be entered into in open court before court adjourns for term at which conviction occurred, under Vernon’s Ann. Code Cr. Proc. 1916, art. 918.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Walter Williams was convicted of using another’s motor vehicle without his consent, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for violation of section 31 of the Acts of 1917, p. 483 (Vernon’s Ann. Pen. Code Supp. 1918, § 1259aa), making it an offense to use another’s motor vehicle without his consent.

The term of the court at which he was convicted adjourned Becember 8, 1918. During that term he did not enter into a recognizance in order to enable him to appeal, but, instead, several days after the adjournment attempted to give this court jurisdiction by executing an appeal bond. The statute (article 918, C. C. P.) and the decisions thereunder in Vernon’s Crim. Proc. p. 880, all hold that in order to give this court jurisdiction of an appeal from a misdemean- or conviction a recognizance must be entered into in open court before tbe court adjourns for tbe term at wbicb tbe conviction occurs. Tbis court lias not and cannot acquire júrisdiction of tbis case because of a failure to enter into a recognizance. Some of tbe cases are cited. Tbe Assistant Attorney General’s motion therefore to dismiss tbis appeal because of failure to enter into sucb a recognizance must be, and is, granted.

Appeal dismissed.
      <g^=>For other eases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


text:
    CHESTER v. STATE.
    (No. 5181.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Railroads <§rv>255(2) — Regulations — White and Negro Passengers — Oeeenses —Complaint.
    Complaint, alleging violation of Branch’s Ann. Pen. Code, art. 1523, requiring. common carriers of passengers for hire to provide separate compartments for accommodation of white and negro passengers and making it a misdemeanor for a passenger to ride in compartment not designated for his race after having been forbidden to do so by conductor, which failed to charge that interurban car upon which accused was riding was owned by a common carrier of passengers for hire, and which failed to state conductor’s name or that name was not known, was defective.
    Appeal from Galveston County Court, at Law; J. C. Canty, Judge.
    Peter Chester was convicted of being a passenger upon an interurban car provided witb separate compartments in a compartment not designated for bis race after having been forbidden to do so by tbe conductor, and be appeals.
    Reversed, and prosecution dismissed.
    J. M. Gibson, of Houston, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Tbe charging part of the complaint upon which appellant was tried is as follows:

“Pete Chester was then and there a passenger upon an interurban car which was then and there provided with separate compartments and did then and there ride in a compartment not designated for his race after having been forbidden to do so by the conductor in charge of said train and ear, against the peace and dignity of the state.”

Article 1523, found in Branch’s Ann. P. C., provides that—

“Every railway company, street car company and interurban railway company, lessee, manager, or receiver thereof doing business in this State as a common carrier of passengers for hire shall provide separate coaches or compartments. as hereinafter provided, for the accommodation of white and negro passengers, which separate coaches or compartments shall be equal in all points of comfort and convenience.”

Subdivision 5 of said article provides that—

“If any passenger upon a train or street car or interurban car provided with separate coaches or compartments, as above provided, shall ride in any coach or compartment not designated for his race after having-been forbidden to do so by the conductor in charge of the train, he shall be guilty of a misdemeanor, and upon conviction shall be fined not less than five nor more than twenty-five dollars.”

It will be observed from a reading of this statute, under wbicb appellant was convicted, that there is no allegation in tbe complaint that tbe interurban car was a common carrier of passengers for hire as required by tbe statute. It charges that appellant was upon an interurban car, but does not charge that it was an interurban railway company. It does not allege tbe ownership — whether it was a common carrier, or owned by an individual — nor does it allege that it was run as a common carrier of passengers for hire. The essential definition of this offense as found in tbe statute is not alleged. In order to constitute a violation of that statute, tbe necessary ingredients provided by tbe Legislature constituting tbe offense must be charged in tbe indictment, complaint, or information. In order to constitute tbis offense, the party must be a passenger, and tbe company must be a common carrier of passengers for hire. The complaint does not mention tbe name of the conductor who, it is •stated, bad forbidden appellant to ride on tbe interurban car. Tbis, it seems, under tbe authorities, is necessary. He was alleged to be tbe party in charge of tbe car, and bis name should have been stated, and, if not known, then it should have been stated that bis name was unknown. Tbis was decided in Daugherty v. State, 41 Tex. Cr. R. 661, 56 S. W. 620.

For the reasons indicated, the judgment is reversed, and the prosecution is ordered dismissed.
      ©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW. J. PRENDERGAST, J.

text:
    AEBY v. STATE.
    (No. 5193.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Larceny <S=»55 — Theft oe Automobile — Evidence — Sufficiency.
    In prosecution for tbe theft based upon theory that defendant took an automobile witb intent to steal it, but made a voluntary return, evidence held) insufficient to sustain conviction. Prendergast, J., dissenting.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    C. T. Aeby was convicted of theft of an automobile, and be appeals.
    Reversed and remanded.
    Synnott & Duggan, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for thev State.
   MORROW. J.

Tbe appellant was convicted of a misdemeanor theft. He was indicted for tbe theft of an automobile, and tbe conviction is based upon the theory he took the automobile with the intent to steal it and made a voluntary return.

The evidence is circumstantial, and we think insufficient. Van Pelt, the owner of a Ford automobile, drove from Royse, in Rock-wall county, to Dallas, taking in his car appellant and two other persons. The car was left standing on the' street about noon, and about an hour later Van Pelt missed it. Appellant disclaimed any knowledge of it, and the evidence shows without contradiction that he remained' in Dallas and was in company with Van Pelt and others several hours after the car disappeared. On the following morning, he told the city marshal of Royse, and through him advised Van Pelt, that he had found the ear at Terrell. He claimed to have gone to Terrell from Dallas in a Maxwell car in which he hired passage, and there was evidence corroborating this statement. He accounted for his connection with the stolen car by the statement that in entering Terrell on the evening that he left Dallas he saw the abandoned car on the wayside, which he later identified as the stolen car. There was some evidence that he was seen in a Ford car in Terrell on the night of the day on which the car was lost. On this point there was a sharp conflict, and there was evidence other than that of appellant that he was in the Maxwell car on that occasion; He drove the stolen car into Terrell the next morning, disclaiming ownership of it, and stating to various persons, including the officers, that it was a’ stolen car, and promptly through them notifying the owner over the telephone.

Appellant’s declaration of the ownership of the car -in Van Pelt, that it was a stolen car, and had been found by him, was an explanation of his possession of the car consistent with his innocence which, we think, was not overcome by the circumstances relied upon to establish his guilt. Such inferences against him as are dedudbie from the evidence would be quite as consistent with the theory that his possession of the car, if wrongful, was with the intent to use it on his trip to Terrell as with his intent to fraudulently appropriate it. His connection with the taking of it at Dallas is not conclusive. The car was moved by some one from the place at which the owner left it about noon, and as late as 4:30 o’clock in the afternoon the appellant was in company with the owner, and was not then shown to be in possession of it. His manner of going to Terrell and his reason therefor are not disproved with a certáinty necessary in a case of circumstantial evidence. On the contrary, his manner of going is corroborated. The evidence pointing to an absence of fraudulent intent to deprive the owner of the value of the car is similar to that controlling the decision of Smith v. State, 66 Tex. Cr. R. 246, 146 S. W. 547, and some of the cases therein cited. 1

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

I believe the evidence was amply sufficient, and the jury and court below so held.


text:
    STEPHENSON v. STATE.
    (No. 5210.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Bail <@^=64 — Appeal Bond — Misdemeanors— Recognizance.
    An appeal from conviction of a misdemean- or cannot be consummated by executing an appeal bond; the statute.requiring a recognizance.
    Appeal from Red River County Court; R. J. Williams, Judge.
    Charley Stephenson was convicted of, violating the local option law, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. 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. .

Appellant failed to enter into a recognizance during term time, but after adjournment of court he executed an appeal bond, which is found in the record. Appeals in misdemeanors cannot be consummated by executing an appeal bond. The statute requires it shall be a recognizance. Court adjourned on the 3d of August, and an appeal bond was executed and filed on the 10th of August, 7 days subsequent to adjournment. The Assistant Attorney General moves to dismiss the appeal because appellant entered into an appeal bond, and not into a recognizance, as required by law. We are of opinion this motion is well taken, and should be. sustained, and it is accordingly so ordered.

The appeal is dismissed.
      <§=For other cases see same topic and KEY-NUMBER’ in all Key-Numbered Digests and Indexes


author: PRENDBRGAST, J.

text:
    McCLENDON v. STATE.
    (No. 5208.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    1. Criminal Law @=598(6) — Continuance— Absence of Witness — Diligence.
    Where defendant was arrested April 25, 1917, indicted for murder October 12th following, and tried May 28, 1918, and state contested his motion for a continuance to procure attendance of his wife as a witness on ground of no diligence, helé, there was no error in denying motion; he having procured no process for wife until May 11, 1918.
    2. Criminal Law (3=1134(2) — Evidence Not Filed at Teem Time — Consideration on Appeal.
    Evidence heard on motion for new trial cannot be considered by the court on appeal where not filed in court below in term time.
    3. Criminal Law @=.1091(4) — Bill oe Exceptions — Rulings on Evidence.
    Bills of exceptions reciting that defendant objected to question asked liim on the ground. that it was immaterial and irrelevant and could i only be used for purpose of inflaming minds of jury, that objection was overruled, and that defendant excepted, are insufficient.
    4. Criminal Law <®=j11T0%(2)- — Failure to Sustain Objection — Harmless Error.
    In prosecution for murder, where accused answered question whether he had not stated that he did not want his wife as a witness “No,” there was no injury to him from failure to sustain objection to question.
    5. Criminal Law @=>1169(6) — Failure to Sustain Objection — Harmless Error.
    In prosecution for murder, where jury assessed lowest punishment, testimony with reference to accused's knowledge of his wife’s whereabouts helcb, conceding that question was irrelevant and immaterial, not such vital error as to effect merits of case or accused injuriously.
    Appeal from District Court', Smith County; J. It. Warren, Judge.
    Massie McClendon was convicted of murder, and appeals.
    Affirmed.
    Hanson & Butler, of Tyler, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDBRGAST, J.

Appellant was convicted of murder with the lowest penalty assessed.

He contends that the court erred in overruling his motion for a continuance and in overruling his motion for a new trial on that ground. The killing of which he was convicted occurred on April 25,1917. He was arrested for that offense on that date. The indictment was preferred October 12, 1917, which was doubtless the first term of court after the alleged offense. He was not tried until May 28, 1918. The witness for whom he sought a continuance was his wife. He had no process for her until May 11, 1918. It was not served. The state contested his motion for a continuance, alleging that he had used no diligence to procure the witness, and that he knew that he had knowledge of where she was at least ten days before the trial, and that he failed and refused to have process issued for her to secure her attendance ; that she lived in a near county, only a short distance, and she could have been present if he had used proper diligence to secure her attendance. To his contest he attached an affidavit of one of appellants witnesses, Mr. Súber, who swore that on Saturday, the week before, which would be about ten days before this case was called for trial, appellant told him that a negro soldier from Camp Travis had told him that he saw his wife at the depot in Kemp, Kaufman county, when the negro soldier went through there, and that appellant told the witness that he knew from this information that his wife was at Kemp, in Kaufman county, Tex., and, further, appellant also told him that if the other side wanted his wife they could get her; that he did not want her as a witness on the trial of his ease.

The court heard evidence on appellant’s i 1 motion for a new trial after his conviction on the ground set up therein of claimed error of the court in overruling his motion for a continuance. That evidence is appended to the statement of facts of the evidence on the main trial, but it was not filed in the court below until September 25, 1918, the court having adjourned on June 29th at which he was convicted. Hence under all the authorities that statement of facts cannot be considered, as it must be filed in term time in order .to enable this court to consider it. See Reyes v. State, 196 S. W. 533, where some of the cases are collated. There was no error in overruling his motion.

Appellant has two bills of exceptions, neither of which in any particular complies with the well-established rules in the preparation of bills of exceptions which would entitle him to have them considered. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Best v. State, 72 Tex. Cr. R. 203, 164 S. W. 996; Lowe v. State, 206 S. W. 519, not yet officially reported, where the rules and authorities are collated.

In one, after the style and number of the cause, he avers that the state introduced this testimony: While he was on the witness stand the district attorney asked him, “Now, in a conversation with Mr. Súber didn’t you tell him that if the state wanted your wife as a witness that they knew where .to get her; that you didn’t want her?” to which he answered, “No, sir.” His objections were that it was immaterial and irrelevant in so far as the issues are concerned in this case, and could only be used for the purpose of inflaming the minds of the jury against the defendant. And the court overruled his objection to which he excepted. This is, in substance, the whole of that bill.

The next is just like it, averring that on the trial the state introduced the following testimony: While he was on the stand the district attorney asked him, “Did you know where your wife was before this case was called for trial, and didn’t a soldier boy from Gamp Travis tell you that she was at Kemp, Tex., in Kaufman county?” to which question he made the same objection that he did in the previous bill; that the court overruled his objection and permitted the witness to answer, “It wasn’t a soldier boy; a boy told me he saw her, but wasn’t for certain at what place; it was out here towards Kemp or Kaufman, one of those places; he wasn’t sure which place it was,” to which he objected.

It is so apparent that neither of these bills comply with the rules as to prevent their consideration. But, if they could be considered, neither of them presents any reversible error. In the first bill his answer would exclude any injury to him. Clayton v. State, 67 Tex. Cr. R. 315, 149 S. W. 119, and cases cited; Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347; Bond v. State, 20 Tex. App. 438; Post v. State, 10 Tex. App. 579; King v. State, 42 Tex. Cr. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792; Kline v. State, 78 Tex. Cr. R. 609, 184 S. W. 823, and cases cited.

Even if it could be beld from consideration of tbe whole record that the testimony was irrelevant and immaterial, it could not be hold to be such a vital error as to affect the merits of the case or appellant in any way injurious. The jury assessed the lowest punishment.

Nothing else is raised requiring notice.

The judgment is affirmed.
      (&=For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    COLLINS v. STATE.
    (No. 5160.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    1. Jurare <§s=»103(6) — Disqualification of Jut-bobs— Formation of Opinion from Witness.
    Under Code Cr. Proe. 1911, art. 692, subd. 13, in prosecution for theft of automobile, two jurors who had formed opinion as to defendant’s guilt from talking with prosecuting witness were subject to challenge for cause, though they stated they could try case on evidence.
    2. Criminal Law ®=>1166%(8) — Appeal-Harmless Eebob — Challenge to Jurors— Exhausting Peremptory Challenges.
    Error in overruling challenges for cause to two jurors who had formed an opinion is cause for reversal, where appellant was forced to use his last peremptory challenges in excusing them, with result that objectionable jurors were forced upon him.
    Appeal from District Court, Cottle County; J. H. Milam., Judge.
    Will Collins was convicted of theft, and he appeals.
    Judgment reversed.
    See, also, 198 S. W. 143.
    Arrington & Bell, of Paducah, and T. H, McGregor, of Austin, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

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

Before the jury was selected two of the jurors on their voir dire were asked the following questions:

“Have you now. in your mind an opinion as to the guilt or innocence of the defendant?”

To which they gave an affirmative answer, and were then asked:

“Is that opinion such as might influence you in arriving at a verdict should you be selected as a juror to try this cause?”

To which they answered that they did not know. Replying to further questions, they each stated that the opinion that they had in' their minds at the time was unfavorable to the defendant, and that it would require evidence to remove it. The court then asked the jurors:

“If selected as jurors to try this cause, can you lay aside the opinion you now have as to the guilt or innocence of the defendant and try this cause solely upon the evidence introduced upon this trial under ruling of the court, and be governed by the law given you in charge by the court?”

To which they each gave an affirmative answer. The jurors were challenged for cause; the challenge overruled. The appellant exhausted his remaining peremptory challenges in disposing of them, and the bill says that he was compelled to and did accept other jurors naming them, who were objectionable, stating the reasons. It further appears from the bill that each of the jurors challenged for cause had talked to the person who was named in the indictment as the owner of the automobile who testified in the case and was the prosecuting witness. They had heard him talk of the facts of the case, but, as stated in the explanation, not the details.

Subdivision 13 of article 692, C. C. P., declares that one having formed from hearsay or otherwise in his mind such a conclusion as to the guilt or innocence of the defendant as will influence his action in finding a verdict is disqualified. The statute further says:

“Eor the purpose of ascertaining whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusions so. established will influence his verdict. If he answer in the affirmative, he shall be discharged; if he answer in the negative, he shall be further examined by the court, or under its direction, as to how his conclusion was formed, and the extent to which it will affect his action.”

This statute has been, in substance, as stated above for many years. It was amended in 1885 (Acts 19th Leg. c. 100) and again in 1903 (Acts 28th Leg., 1st Called Sess., c. 9) and 1905 (Acts 29th Leg. e. 107). The amendments add to the statute the following:

.“If it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states on oath that he feels able notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied, that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in •such case.”

This statute, as construed by the decisions of this court, makes a distinction between the conclusions which are formed by the jurors upon information received from witnesses and those which are formed upon rumors or information received from hearsay. Keaton v. State, 40 Tex. Cr. R. 145, 49 S. W. 90; Trotter v. State, 37 Tex. Cr. R. 473, 36 S. W. 278. It is said by Mr. Branch in his Ann. P. C. p. 285:

“A juror who has formed an opinion as to the guilt or innocence of the defendant from talking with one or more of tbe material witnesses in the case is subject to challenge for cause, although the juror states that such opinion will not influence his verdict” — citing cases above quoted; also Ward v. State, 19 Tex. App. 687; Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248.

See, also, Slack v. State, 67 Tex. Cr. R. 460, 149 S. W. 108.

While the bill is not clear upon the subject, as it should be, it does show that the jurors had each been talked to about the case by Welsh, the prosecuting witness, the man whose property was charged to have been stolen. There is no suggestion that they reached the conclusion they had formed from any other source, and we think from a fair interpretation of the bill it appears that the witness mentioned was the source of the information or knowledge upon which they based their conclusion unfavorable to the appellant. We think that the ruling which overruled appellant’s challenge of the jurors who had formed this opinion for cause resulting in the necessity of his exhausting his remaining peremptory challenges upon them and having forced upon him objectionable jurors was a transgression of the law entitling the accused to a trial by an impartial jury, which renders it necessary to order a reversal of the judgment, which is accordingly done.
      «g^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TURNER v. STATE.
    (No. 5146.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    1. Assault and Batteby <©=596(3) — Duty to Submit Law of Thbeats.
    Although the rule is that it is unnecessary to charge on threats not made antecedent to difficulty but as a part of it, yet, where victim between first encounter and the one in question made a threat which was heard by defendant, the jury should in connection with charge on self-defense be informed as to the law of threats.
    2. Assault and Batteby <&=>96(3) — Aggravated Assault — “Antecedent” Thbeats.
    As regards the necessity of charging, in connection with instructions on self-defense, on threats antecedent to difficulty, “antecedent” means prior in point of time.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Antecedent.]
    Appeal from District Court, Parker County ; F. O. McKinsey, Judge.
    Jim Turner was convicted of aggravated assault,- and appeals.
    Reversed and remanded.
    Hood & Shadle, of Weatherford, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant wounded one C'ombs with a knife, and was convicted of aggravated assault, and his punishment fixed at confinement in the county jail for six months.

There was a dance at the residence of Combs, to 'which appellant was invited by one Mullins, in whose honor the dance was given and who had authority to extend the invitation. There was some previous ill feeling between appellant and Combs, and, when the latter learned of appellant’s presence, he ordered him to leave the premises, and a fight ensued between them which took place upon the gallery of Combs’ house. The parties were separated by an officer, and, Combs having claimed that appellant was using knucks, the officer expressed a desire to search appellant. To this appellant consented, stating, however, that he desired to get out of the yard first, which was done. After making the search, the officer left appellant, making no arrest, and there is some testimony that Combs went toward or in the house. Subsequently, Combs went outside of the yard into his pasture where the appellant was and, according to the latter’s theory,. assaulted • him. During the interval C'ombs said: “I will kill the son of a bitch or make him leave.” The difficulty occurred at night, and appellant claims that he heard this remark, and that Combs came out into the pasture, came up to him and struck him, and that he, believing himself in danger of serious injury, got out his pocketknife and struck Combs, inflicting the wound upon which the prosecution is based. Appellant said that Combs was coming right on him, that he cut him as quick as he could, and did not know where he had cut him. Appellant was a young man about 20 years of ago, weighing about 160 pounds; Combs was a man somewhat older, weighing about 175 pounds.

The court in his charge made no ref--erenee to the law of threats. Appellant insists that in connection with the charge on self-defense the jury should have been informed as to the law of threats. An exception to the charge was reserved and a special charge requested and refused.

In the case of Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696, the ruling was that it was only necessary to charge on threats which were made antecedent to the difficulty; that threats made during the progress of the difficulty do not call for a separate charge. The court’s remarks and the statement of the case show that, at the time of the assault which resulted in the homicide, the deceased was making no attempt to execute any threat. There had been' no previous difficulty or trouble. In this case there was some evidence of prior ill feeling; that is to say, ill feeling existed before the appellant went to the house of Combs. After he reached there, from the viewpoint of appellant and his witnesses, C'ombs assaulted him, applying to him a vile epithet, and after they were separated, and while the officer was searching appellant, there was some evidence that Combs went toward the house, and that when he returned he made the remark which is quoted above, which was testified to by others besides appellant. The remark attributed to Combs and which appellant claims to have heard was calculated to give color to the act of Combs in following appellant through the gate and assaulting him. It was dark, and appellant was ■unable to see whether his assailant was armed or not. It is hard to lay down a rule that .would be applicable to all cases defining what was a part of the difficulty and what was antecedent to it; necessarily, to some extent, the facts of each case would control. “Antecedent” means prior in point of time. On this occasion, there were two encounters. After the first and before the second, the threat was made. It is not clear whether it was made directly to the appellant, but it does appear that he heard it. A case upon facts somewhat similar is Thomson v. State, 49 Tex. Cr. R. 385, 93 S. W. 111. The parties there were riding' together in a hack, and the deceased, during about an hour before the homicide, made several remarks, one time telling the accused that he was going to push him out of the hack; another, that he had a good mind to whip him. Immediately before the fatal encounter, the deceased said: “I know you did it, and by God I am going to kill you.” This evidence was held by the court to require a charge on threats. We think in the instant case that the jury should have been informed, in connection with the charge on self-defense, in reference to the law of threats so that they might interpret from appellant’s standpoint the acts of Combs occurring after the threat was uttered.

The judgment is reversed, and the cause remanded.
      tíS=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 5084.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.)
    1. Landlord and Tenant @=323 — “Chopper.”
    Under an agreement to go on a landowner’s farm and cultivate a part of it, the parties to divide the crop equally, the landowner to haul the crop to the gin, the cultivator of the ground was a “cropper.”
    2. Homicide @=3303 — Instructions — Evidence-Protection op Property.
    Evidence in murder prosecution held to raise no issue as to whether deceased was robbing or attempting to rob defendant of his cotton at the time of the killing, upon which issue an instruction was requested.
    Appeal from. District Court, Harrison County; P. O'. Beard, Judge.
    J. J. Davis was convicted of murder, and he appeals.
    Affirmed.
    Brown & Hall, of Marshall, for appellant,
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, with the lowest penalty assessed.

The evidep.ce shows that appellant was a “cropper” on the deceased’s (J. D. Benson’s) farm for a part of the' year 1917; that the contract when appellant went on Benson’s farm was in effect that appellant was to cultivate a certain part of Benson’s farm, and that they were to share equally in what he raised, one-half to Davis and one-half to Benson; and that Benson was to haul the cotton picked by Davis off of the place to the gin. The effect of the contract between them, as stated, was that Davis was a “cropper.” Rogers v. Frazier, 108 S. W. 727; Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753; Doke v. Railroad Co., 60 Tex. Civ. App. 106, 126 S. W. 1195; and several cases therein cited.

Davis, before the cotton was picked, had mortgaged his part. He claimed that, about the time he had picked the first bale, it seems, that he and Benson had an agreement by which Benson was to take the first' bale, he the second, Benson the third, and he the fourth, but that Benson was to himself haul all of the cotton to the gin.

Mrs. Benson, the wife of deceased, swore that her husband and Davis did not agree to divide the cotton as claimed by Davis, but that instead Benson was to haul all the cotton to the gin, and when the cotton was sold they were to divide the proceeds equally between them; that one reason that they did not agree to divide the cotton as stated by Davis was that one bale might contain more cotton than another, and hence, instead of dividing the cotton in bales alternately, they were all to be sold and the proceeds divided, as stated; in any event, that Benson was to haul all of the cotton to the gin. She and Davis agreed on that point.

The testimony agrees that Benson did haul the first bale to the gin. Davis claimed that he tried to get Benson to haul the second bale, his bale, as he called it, but that Benson failed or refused to do so. This was explained on Benson’s part by the fact that at the particular time when Davis wanted hioi to haul it he was engaged in a contract for hauling cotton seed for others, and could not at that particular time haul the second bale to the gin. Davis, it seems, got a wagon and team from a neighbor and himself hauled it, or had another to haul it for him. When the third bale was picked and ready to be hauled, Benson hauled that to the gin. Benson claimed that after that bale was loaded on his wagon, some time that night, Davis stole some 100 pounds off of the wagon, and that when he got it to the gin it lacked some 100 pounds of being a bale. Benson also claimed that Davis had stolen some of his part of the corn of that crop, and had had Davis arrested for these claimed thefts.

When the fourth or last bale was about picked, Davis went off in the neighborhood somewhere and got a neighbor’s wagon and team to haul it to the gin. Just as he was approaching the place with -this wagon and team, Benson met him and, finding out what he proposed to do, forbade him to do so, and would not let him haul the cotton, stating that ho (Benson) would haul the cotton. Trouble arose at this point between the parties, and Davis claimed that Benson used such language to and toward him at the time as to be guilty of an offense. He returned the team and wagon he had gotten, went to a small town some few miles distant, made a complaint against Benson for using abusive language to him, and had a warrant for his arrest issued on that complaint.

Further instances of trouble between Davis and Benson were shown. A considerable state of hostility existed between them. It is unnecessary to give these various instances. This last trouble, about hauling this last bale, occurred between Benson and Davis in the morning. The killing occurred that evening. That evening Benson and his wife and little boy went on their wagon to get the bale of cotton that appellant had picked, for the purpose of hauling it to the gin. Benson sent his son up to Davis’ house, to get Davis to come down and help them load the cotton. Davis was not at home. It seems at this time he had gone to town to file the complaint against Benson, as stated, and have the warrant issued for his arrest. Mrs. Davis tried to phone and get Mr. Davis. It seems she went to a neighbor’s to phone, but failed to get him. Either this neighbor, where she tried to phone, or some others, learned that Mr. Benson had gone to haul the cotton, and that appellant's wife, Mrs. Davis, was trying to get Davis over the phone. Some of them started to town that evening, met Davis, told him these facts, and told him that Benson was loading the cotton. Mr. Davis’ little boy was along with him, it seems, on this occasion, and had a shotgun. Mr. Petty swore that—

“When Jackson told Davis that Benson was loading the cotton, Davis reached over and took the gun from his boy, and said he bet Benson would never load any more cotton.”

He then went to where the killing occurred.

Mrs. Benson testified that after they had loaded the cotton and were hauling it to the gin, and after they had got a right smart distance from where they had loaded it, Davis met them; that he drew his gun and presented it on her husband, and asked her husband: “Do you know whose bale of cotton that is?” Her husband replied: “Mine and yours.” She then testified as follows:

“I said, ‘Mr. Davis, please don’t shoot.’ I jumped in his (her husband’s) lap; said, ‘Don’t shoot him, Mr. Davis; please don’t.’ Pie raised his gun a little higher. I raised a little higher in my husband’s lap. Mr. Davis snapped the gun, taken it down, and fixed it to make it shoot. I said, ‘Oh, Mr. Davis, please quit, please quit.’ He walked around. I was begging with him to quit. I said, ‘For God’s sake, think of yourself and little ones, and think of me and mine, and please don’t shoot him.’ He walked around to the side of the wagon. I threw my arm over his body, and he shot him between my arm and the body. Mr. Davis said, ‘Now, you see what you got into.’ He taken out yellow shell; I disre-member whether he put it in his pocket or dropped it on the ground; went to put in another. I jumped off the wagon and reached back and got the hammer. I said, ‘If you shoot again, I will-mall your brains out;’ and he ran. My husband said, ‘Oh, Lordy! he has killed me.’ ”

The uncontradicted proof showed that deceased was not armed; that be merely bad a small pocketknife in bis pocket closed. The testimony of Mrs. Benson and her son, who was present, showed clearly that deceased made no demonstration in any way toward Davis; in other words, disproved any claimed self-defense on Davis’ part.

Davis swore in substance that, when he met deceased on this occasion, be tried to talk him out of going on with the cotton, and asked him if be knew what be was doing, and that deceased used insulting language to him, and told Mm that it was his cotton, and be would be sure to keep it, and that the deceased • then told bis wife to get out of the way and be would fix the old son of a bitch, and that be then shot deceased in self-defense; and be claimed that it was about two or three minutes from the time he first met him on this occasion until he shot deceased. Further, he said he did not know whether he intended to kill him when he snapped the gun at him or not, but “was trying to protect my cotton and my life, both I suppose; I thought I had the right to protect my life of my cotton.” Appellant also swore to some claimed threats made by the deceased against him.

The court gave a full, apt, and correct charge, submitting to the jury every issue that was raised by the testimony. The court properly submitted murder, manslaughter, self-defense, and self-defense predicated on threats. There was no complaint at all to the court’s charge.

The only questions raised are to the court’s refusal to give two special charges requested by him. Both of these were predicated ou his right to kill the deceased to prevent the deceased from robbing him of said bale of cotton, and to protect appellant’s possession thereof. The evidence raised no such issue. On the contrary, it excluded the idea that the deceased was robbing, or attempting to rob, the appellant of the cotton.

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


text:
    NEASE v. BROADWATER MERCANTILE CO.
    (No. 6081.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Appeal and Error <@=907(3) — Matters Reviewable — Findings of Pact.
    In the absence of a statement of facts or findings of fact by the court, or a proper bill of exceptions showing the assertions made, a judgment must be taken on appeal as proved.
    2. Evidence <§=3366(5) — Judicial Proceedings in Other States — Authentication.
    Rev. St. U. S. % 905 (U.. S. Comp. 'St. 1916, § 1519), requires a judge’s certificate as well as attestation by clerk, to entitle transcript of foreign court proceedings to be introduced in evidence.
    3. Evidence <§=>158(5) — Judicial Proceedings oe Foreign Courts — Parol Proof.
    The judicial proceedings of a foreign court may be proven, as at common law, by testimony of competent witnesses.
    4. Appeal and Error <§=691 — Matters Reviewable — Findings of Fact.
    Where there is neither a statement of fact nor a finding of facts by court, and a bill of exception fails to negative that there was other evidence, it cannot be said, from the mere fact that an improper authenticated transcript was admitted in evidence, that a judgment of a foreign court was not.proven by competent testimony.
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by the Broadwater Mercantile Company against D. A. Nease. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Augustus McCloskey, and Taliaferro, Cunningham & Birkhead, all of San Antonio, for appellant.
    Jay Minter and James W. Brown, both of San Antonio, for appellee.
   SWEARINGEN, J.

This suit was filed in the district court, Fifty-Seventh judicial district of Texas, by the Broadwater Mercantile Company as plaintiff, against D. A. Nease as defendant. Plaintiff alleged in its petition that it is a foreign corporation, the basis of plaintiff’s cause of action being alleged;

“That the defendant is justly indebted to plaintiff in the sum of $756.43 with interest thereon at the rate of 6 per cent, per annum from September 25, 1912, for this: That on September 25, 1912, plaintiff recovered judgment against said defendant in the circuit court of Barbour county, W. Va., for the sum of $756.-43, with interest thereon from said date at the rate of six per cent, per annum, which said judgment has never been paid or satisfied either in whole or in part, and is still in full force and effect, and that: though often requested said defendant has failed, neglected, and refused to pay said judgment or any part thereof. That said defendant is not a resident of the state of Texas, but owns land in Bexar county, Tex., subject to attachment and execution sufficient to satisfy said judgment.”

Plaintiff’s prayer for relief being as follows:

“Wherefore plaintiff prays for citation to said defendant and for a writ of attachment to be levied on sufficient of defendant’s property to make the amount of plaintiff’s debt, with interest and costs, and that the lien created by said attachment be foreclosed, and for all such other relief, general or special, as in either law or equity plaintiff may be entitled to, and as in duty bound plaintiff will ever pray.”

The writ of attachment prayed for was issued on the 13th day of February, 1917, and levied the same day on the property therein described.

The defendant answered by general demurrer and special exception and a general denial of the allegations of plaintiff’s petition, a special denial of the allegation that he was a resident' of Missouri, an allegation that he was at all times a resident of the city of San Antonio, and a further denial of the indebtedness claimed by plaintiff, and the allegation that, if any judgment was recovered as alleged by plaintiff, same was void and a nullity, in that no service was had upon defendant in such suit, and also a denial of the ownership of the property upon which the writ of attachment sued out was levied, and the further allegation that the writ of attachment was maliciously sued out whereby defendant’s credit was damaged, etc.

Upon the trial before the court without a jury on November 30, 1917, the general demurrer and special exception were overruled, and judgment was rendered for plaintiff, as prayed, together with foreclosure of the attachment lien.

There is no statement of facts and finding of fact by the court, which requires us to overrule the second and third assignments. The second assignment contends that there was no testimony to show the amount of the indebtedness claimed, and the third asserts that the undisputed evidence proved that the property attached did not belong to appellant. In the absence of a statement of facts or findings of fact by the court, or a proper bill of exceptions showing the assertions made, the judgment must be taken by us as proved.

The first assignment is that the court erred in admitting in evidence over timely objection the foreign judgment, which is the basis of appellee’s suit, and the transcript of the foreign court’s proceedings resulting in that judgment. The objection was that the foreign judgment and proceedings were not properly authenticated. The bill of exception shows that the judgment and proceeding were attested by the clerk of the foreign court, but that there was no certificate of the judge, etc., of said court that said attestation was in due form. The federal statute, for authentication of judicial proceedings, requires the judge’s certificate, as contended by appellant and supported by his citation of authorities. Rev. St. § 905 (U. S. Compiled Statutes 1901, vol. 1, p. 677; U. S. Comp. St. 1916, § 1519); Wolf v. King, 49 Tex. Civ. App. 41, 107 S. W. 617.

However, the proceedings could have been proven, as at common law, by the testimony of competent witnesses. Tourtelot v. Booker, 160 S. W. 293, § 5, So far as the record before us shows, the proceedings of the foreign court may have been proven by the testimony of competent witnesses. There is neither a statement of facts nor a finding of the facts by the court, as previously stated, and an examination of the bill of exception fails to negative that there was evidence other than the improperly authenticated proceedings. “The rule is of long standing that a party desiring to present for revision a ruling of the character involved in this case must do so by bill of exception which in terms is so specific as to point out the -precise error intended to be relied upon, and that it should state the facts so as to exclude any reasonable conclusions of fact other than those stated upon which the decision could be maintained. Houston v. Perry, 5 Tex. 462; Sadler v. Anderson, 17 Tex. 246; Anderson v. Anderson, 23 Tex. 641; Hill v. Cunningham, 25 Tex. 32; and Knights of Golden Rule v. Rose, 62 Tex. 322.” Curry v. York, 3 Tex. 357.

The judgment is affirmed.
      <®=5>For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    MENKE v. FIRST NAT. BANK OF AMARILLO.
    (No. 1395.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Sales <§=5202(1), 234(8) — Passage of Title — Payment on Delivery.
    Where the terms of a sale of personal property are cash on delivery, concurrent payment upon -delivery is essential to pass title, and in the absence of an estoppel the vendor may retake the property in the hands of an innocent subvendee for value.
    2. Sales <§=>465 — Conditional Sales —Necessity of Filing.
    Where a sale is conditional, in that title is to pass, not upon delivery of the property, but upon subsequent payment, in order to affect subsequent purchasers or creditors, it must be filed as a chattel mortgage, under article 5654, Rev. St.
    3. Sales <@=5196 — Waiver of Payment on Delivery — Evidence.
    In an action against a bank to recover on account of wheat sold, facts held to show that plaintiff, in making bill of lading, waived payment on 'delivery, and established the relation of debtor and creditor between himself and the immediate purchaser.
    4. Sales <§=5219(3) — Rights of Third Persons.
    Where an owner of wheat sells it,‘ and by waiving immediate payment makes the purchaser a bailee, with authority to dispose of the wheat and its proceeds, a bank, cashing the purchaser’s checks and crediting his account with amount of a draft attached to a bill of lading, is protected as against the seller.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Action by Dietrich Menke against the First National Bank of Amarillo. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Madden, Trulove, jRyburn & Pipkin and F. A. Cooper, all of Amarillo, for appellant.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HUFF, C. J.

The pleadings in this case are voluminous and will not be set out, as we think the issue raised may be determined by a statement of the facts. Grover C. Bishop was in the grain business in Amarillo during the year 1916, doing his banking with the appellee bank. The general method or custom in handling grain, as testified to by Bishop, was:

“If I bought a car from other dealers, a bill of lading came in here. I would give check on the First National Bank of Amarillo, take up the draft, and make redeposit. * * * That was just a matter of giving check on the bank and redepositing draft on the car of wheat or grain, as the case might be. They were all handled that way from time to time prior to October 11, 1916. When I purchased from the farmer, I would give him a check for it; then I would bill car out immediately and take bill of lading in and deposit to my credit; that is, to cover' the amount of the chock.which I had given against the particular car of grain, if I needed it. * * * In redepositing these drafts with bill of lading attached here in the First National Bank, I usually and customarily showed myself consignor. Everything was shipper’s order; that is the customary way of handling outbound grain drafts by grain men.”

He further stated that it did not occur often that the check given to the farmers would reach the bank before the draft and bill of lading was deposited, but when it did the bank called Ms attention to the matter and he would tell them what he had to cover the check and the bank would carry it. The facts show that, when Bishop bought and shipped grain, he would deposit draft and bill of lading attached, drawing against parties to whom he was shipping. He had a regular running account with the bank, and would deposit his drafts, which would be credited on Ms account, and be would check on Ms account as any other ordinary banking account. The bank would honor Bishop’s checks against it before it had received returns on the draft. The draft so drawn was taken by the bank, and Bishop was given credit on his account for the amount, subject to the payment of the draft. The bank paid Ms checks for any amount that he had to Ms credit, including the credit covered by the drafts which he had deposited. This was the general method of transacting business by Bishop through appellee bank. In August, 1916, appellant, Menke, contracted to sell to Bishop 1,000 bushels of wheat, which was grown on land belonging to the estate of appellant’s deceased brother, which appellant farmed under a rental contract, by the terms of which he paid one-half of the crop. His brother left six children, three of whom were minors, for whom appellant was guardian, and he sues in this case for himself and as guardian of the minor children. Both Menke and Bishop testified the sale of the wheat was by oral contract and was a cash transaction. Appellant, however, introduced in evidence the following instrument, which the testimony shows was in duplicate, one of which was kept by Menke and the other by Bishop:

“Grover O. Bishop, Wholesale Grain and Hay.
“Contract of Purchase.
“Amarillo, Texas, August 26, 1916.
“Dick Menke, Soncy, Texas:
“We hereby confirm purchase from you to-day as follows:
“Quantity: 1,000 bushels.
“Grain: Number 2 hard winter milling wheat.
“Price: $1.50.
“Basis: E. O. B. Soncy.
“Shipment: Next week.
“Route: Mine.
“To be Billed: S. O.
“Destination:
“Terms: Demand.
“Weights: Destination.
“Grades: Destination.
“It is distinctly agreed between us that this contract is subject to all the rules and regulations and customs of Texas Grain Dealers’ Association, and that said rules and regulations shall be binding on both parties to this contract. It is also agreed that this confirmation is a part of the contract and its acceptance by you without notifying us by wire of error is acknowledgment of contract as set forth above.
“Remarks: * * *
“Yours truly, ■ Grover C. Bishop,
“By [Signed] Dick Menke'. “(Duplicate.)”

Immediately thereafter Menke began loading the wheat in a car on the siding on the Chicago, Rock Island & Gulf Railway Company, and finished loading about the 30th day of August. The next day after loading he went in to see Bishop and told him the car was loaded. Nothing further passed, except Bishop told him he wanted to have the car taken out; but Menke says it stood there three or four days after. Menke saw the car when it was moved by the railroad company, and knew that it moved about the 5th of September. There was no railroad agent at Soncy, the siding'where the car was loaded. Bishop told him,- after he moved the car. that he had procured bill of lading for the car, and appellant also saw copy of the bill of lading. It appears that, when appellant first reported to Bishop about the loading of the car, he showed him a memorandum, presumably of the weight; but Bishop told him there was a mistake, or that it was incorrect. Appellant at that time did not ask for a check or payment. Appellant admits that he was not in to see Bishop earlier than the 19th, after loading, for the reason that he did not have time, and on the 19th he asked Bishop if .he had the returns on the car, at which time Bishop said he did not have time then and left his office. The next time Menke saw Bishop he asked Bishop for the money. The time apparently fixed for this conversation was about the 24th or 26th of September, and with reference to the conversation had Menke testified:

“He [Bishop] said: T will hold the money for you. You are in bad shape to take that money.’ And I say: T can carry that money in my pocket.’ That is what I told him. I says: ‘I can carry that money in my pocket.’1 And then he says: ‘Well, you need that money, and it is not safe to carry that way. I will hold that money for you.’ And I say: T can take that money, but if it is not safe, and if it is safe for you to hold it, you can keep it until I have paid off that land.’ Bishop said: ‘It is safe.’ ”

Appellant then, left Bishop. From the evidence it appears some time prior to this transa'ction Menke had entered into a contract with a Mr. Ridgway to purchase some land, and had placed up his check with the contract in the bank for $1,500. He desired to cancel this contract, and did not want to carry it out. He spoke to Mr. Fuqua, the president of the bank, about the matter somewhere near the time of this last conversation with Bishop, who it appears told Menke, if he should place the money in the bank, it would likely be applied on the check in the land transaction. This land contract was afterwards rescinded, it appears from the evidence. After this last conversation with Bishop, some one appears to have warned Menke that he should get his money from Bishop, and on the 7th of October he demanded his money from Bishop, and on that day Bishop issued his check on the bank for $1,500 payable to the order of Menke. This was after banking hours and about 5 or 6 o’clock in the afternoon; however, Menke went to the bank and entered at the side door, he does not appear to have presented the check-for payment or deposit, but only remarked that he reckoned it was too late to deposit, and the vice president replied that it was a little late. We infer from the evidence, which is rather indefinite, that the omcers knew whose cheek it was that Menke had. The 7th was Saturday. Menke did not again present the check until the 11th of October, at which time the bank informed Menke that it would not pay Bishop’s checks, and the vice president said they could not have paid it on the 7th, or that Bishop did not have any money at that time. It appears that the bank on the 11th had refused to pay any more of Bishop’s checks. In the clearance fpr the day before it had gotten checks through the Amarillo National Bank, drawn on appellee by Bishop, and perhaps other checks, and refused to pay because of lack of funds, and suspended payment of his checks on the 11th.

Bishop, on September 5th, procured from the railroad company an order bill of lading for a car of wheat said to weigh 73,000 pounds, consigned to the order of Grover O. Bishop, destination, Ft. Worth, Tex., and to notify Douglas W. King, Ft. Worth, Tex. At the same time he drew on Douglas W. King for $1,8S9, in favor of appellee bank, and attached it to the bill of lading and delivered it to the bank. The bank gave him credit for the draft and forwarded it to its correspondent'at Ft. Worth, Tex., and gave Bishop’s current checking account credit for the amount of the draft. King, upon presentation to him, refused to accept, because the wheat was sent to him on consignment, and he refused to pay for wheat on consignment. After protest, Bishop.directed the bank to return the draft, which it did, and the draft was paid on presentation September 9th. This draft is covered by King’s, check for $4,985, covering two other cars of wheat, for which appellee bank was given credit by its correspondent at Ft. Worth. The evidence shows that Bishop checked continuously on the bank and upon his account, and that both on the 7th and 11th of October he had a small balance to his credit; a little over $10 on one day and only a small amount on the other. On neither day had he sufficient to pay the check, and but a small or fractional part of it. It appears he had issued other checks against his account, which could not be paid on account of insufficient funds, and these were presented to the bank before appellant presented his check. The evidence is perhaps sufficient to ..show that the bank, about the middle of September, had notice that Menke had sold his wheat to Bishop; but there was nothing on the bill of lading or draft to evidence that the wheat called for therein was the wheat Menke sold. The draft had been placed to the credit of Bishop, and paid, before the evidence shows the bank had any notice of the sale to Bishop.

The appellant alleged that the bank had applied the proceeds of the wheat to a pre-' existing debt owing it by Bishop. There are no facts from which a jury could have drawn any such inference. If Bishop bought grain and desired to hold it, he usually made arrangements to carry through the bank, by giving his note and a mortgage on the particular grain, which upon sale his obligation therefor was discharged. There was an effort made to show pre-existing debts were paid by the wheat, but our conclusion of the facts is no jury would have been justified in so finding from the evidence. This particular wheat was handled through the bank in the usual and customary way first set out by us in this statement, except Bishop did not give to the farmer his check before or at the time of billing the car, as it appears from his testimony to have been the custom. At the conclusion of the evidence the trial court directed a verdict for the appellee.

The first assignment is to the effect that the evidence was sufficient to authorize the jury to find that the sale was a cash transaction and that Menke had not parted with the title. Perhaps the testimony of Bishop and Menke would justify the jury so to find. As we understand the rule, where the terms are cash on delivery, if such was the contract, the concurrent payment upon delivery was essential to pass title, and if there was nothing in the transaction which would create an equitable estoppel against the vendor, he may take the property in the hands of an innocent subvendee for value. Johnson v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; National Bank of Commerce v. C. B. & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566; Farmers’ National Bank v. Henderson, 29 S. W. 562; Lang v. Rickmers, 70 Tex. 108, 7 S. W. 529. In the two cases first cited the vendor gave his checks on or before delivery, which were not paid, and the banks therein applied the proceeds of the property sold to a pre-existing debt. In such case it was held the vendor could recover. Such in effect is the holding of Davis v. Bank, 29 S. W. 926, and Commercial Bank v. Jones, 18 Tex. 821. In this case, however, while appellant and Bishop both testified the contract was oral and was a cash transaction, appellant shows and proves it was a sale on credit and that the contract was in writing. He introduce^! a written contract, which he signed, which stipulates that the terms of the sale were upon demand, weight and grade at destination. There is no pleading that this contract was signed through fraud or mistake, and none is proven; but, on the contrary, it is shown, after signing the contract, appellant loaded the car, notified Bishop of the fact, assented to his shipping the wheat in his own name as consignor, drawing for its price and taking credit for it in his own name in the bank.

After loading, no demand was made by Menke for payment until more than a month after the car had been shipped, and in the interim appellant agreed to permit Bishop to owe him rather than to take a check on the bank or accept payment, and this was done to subserve his own purpose; that is, avoid payment on a land contract which he desired to evade. If there was a conditional sale, properly so called, that is, that the title is to pass, not upon delivery, but upon payment at some subsequent date, then in order to affect subsequent purchasers or creditors under article 5654, R. C. S., it should have been filed as a chattel mortgage. As above suggested, the contract upon which appellant sold the wheat required payment upon demand, and not upon delivery; that is, required a subsequent payment, and the evidence clearly shows appellant and Bishop acted upon the understanding that payment was not due until demand; that is, that payment was not made a condition precedent to pass title. Southern Pine Co. v. Savannah Trust Co., 141 Fed. 806, 73 C. C. A. 60.

Again, if it ever was the contract that it was to be cash -upon delivery, it is shown beyond controversy that appellant waived payment upon delivery. The writing itself shows such waiver. The agreement to wait on Bishop, the agreement that he could ship and sell, the fact that appellant loaded for shipment and knew it was to be shipped, knew that Bishop had the bill of lading, saw the bill, and asked if he had returns, and did not request payment to him of the proceeds, all show a waiver. It is irresistible that he did not consider the wheat his, nor the proceeds of the sale, which in this case was some $300 more than the price to be paid him. All these conclusively establish the relation of debtor and creditor between Menke and Bishop, which appellant recognized. In this state, as we understand the rule:

“Possession having passed, and the buyer, by the act of the seller, having been invested with the indicia of ownership, the policy of our law requires the situation — the possession in one and the right of property in the other — should continue no longer than is necessary to enable the seller to recover the goods with which he has parted. The law gives the seller the right to reclaim his goods, but he must do so promptly; otherwise, he will be held to have waived his right, and can only thereafter look to the buyer for the price.”

This rule, it seems to us, should be strictly enforced«in this ease. To ingraft upon this transaction a conditional sale after the bank had in good faith given Bishop credit on his current account for the proceeds of the sale, and after he had checked it out, and that, too, when appellant could have protected himself if he had demanded payment at once, would be unjust, and such a rule would unsettle' and make hazardous the handling by banks of such commercial transactions, which are essential to the speedy disposition of the products of the country. Victor Co. v. Texas Co., 101 Tex. 94, 104 S. W. 1040; Scharff v. Meyer, 133 Mo. 428, 34 S. W. 858, 54 Am. St. Rep. 672.

But, should we hold that the facts are sufficient to have warranted a finding by a jury that there was in fact no sale, and only permission to take the grain into the dealer’s possession, and to take a bill of lading in his name as consignor, and to sell and receive the proceeds and place to his credit in the bank, and even though the bank might have known such fact, yet we do not think a right to recover is shown in this case. Bishop, according to appellant’s contention, would be but a bailee with authority and the apparent right to handle and deal with the wheat and the proceeds, which would protect the bank on Bishop’s cheeks. Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885.

A careful examination of the entire record and evidence has convinced us that no other judgment should have been rendered than that which the court did render, and we therefore affirm it.
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