author: DAVIDSON, Judge.

text:
    BELL v. STATE.
    (No. 4305.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.
    Rehearing Denied Jan. 10, 1917.)
    Larceny <@=>55 — Sufficiency of Evidence..
    Evidence consisting of testimony of the victim, who was drunk, and with whom defendant had been, and of one who saw him putting his hands in the victim’s pockets, held, sufficient to sustain a conviction of larceny from the person.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. <@=>55.]
    Appeal from Criminal District Court, Travis County; C. W. Robinson, Special Judge.
    Marion Bell was convicted, and appeals.
    Affirmed.
    T. B. Monroe, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, Judge.

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

The evidence is not of a cogent nature, being a case of circumstantial evidence; yet we are not prepared to say the jury, under the circumstances, was unauthorized to render their verdict. The injured party was in a state of intoxication, and was not very clear in his testimony as to a part of the transaction, and during the latter part of the day seems to have been in such condition that he did not recollect things that actually occurred, but he did recollect that appellant was with him and moving about town and drinking with him, and he recollected the appellant knocking him over or pushing him over, but he did not seem to be clear as to whether appellant got his watch and money or not. There was a woman about 60 years of age who saw this transaction from a nearby residence, and recognized the defendant as the man who either knocked or pushed down the alleged injured party, and saw him ■put his left hand in the left-hand vest pocket and his right hand in the right-hand vest pocket of the injured party. She saw him take something from the pocket, but did not recognize what it was. -The watch taken was in the left-hand pocket and the money was in the right-hand pocket. The watch and money were both gone when the injured party was arrested and carried to the calaboose for being intoxicated. Later on appellant left the injured party, and was arrested about an hour later in a different -part of the city. He, too, was sharply intoxicated. This is the substance of the state’s case. Appellant was never seen with the watch, but the officer who arrested him said he had $4 or $5 in silver, but the books at the police station only showed he had 70 cents. A stranger pawned the watch within the hour at Mr. Jackson’s jewelry establishment. The watch was-found there, and Mr. Jackson testified a stranger brought it there, that he had known appellant for a year, and that appellant was not the man who pawned the watch, appellant himself denying having taken the property. This is practically the defendant’s case. We are of opinion that the testimony of the injured party, in connection with the testimony of the lady who saw the transaction, was sufficient to authorize the jury to render their verdict.

The judgment is affirmed.

HARPER, J., absent.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    MARTINEZ v. STATE.
    (No. 4315.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.)
    Criminal Law <@=>1090(1) — Appeal—Record.
    Where there is neither a statement of facts nor bills of exceptions, there is nothing to review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2805-2807, 3204; Dec. Dig. <@=>1090(1).]
    Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.
    Vicenta Martinez was convicted of violating the law prohibiting the sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for violating the law prohibiting the sale of intoxicating liquor in prohibition territory, a felony. But there is neither a statement of facts nor bills of exceptions, and hence nothing to review.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    CARR v. STATE.
    (No. 4328.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.)
    1. Homicide <@=>135(1) — Indictment—Means or Instrument.
    In an indictment for murder by “cutting him with a sharp instrument,” the grand jury should have charged the character of the instrument used if they could obtain the information.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 215-217, 219, 221; Dec. Dig. <@=> 135(1).]

      2. I-Iohicide @=>286(1) — 'Trial—Instructions —Intent.
    Upon trial for murder, where there was nothing to indicate that the weapon used was a deadly one, and the fatality of the wound can ho accounted for without imputing to appellant the purpose to kill, it could not be legally presumed that appellant intended to kill, and it was error for the court not to so instruct the jury, and not to include in its charge Pen. Code 1911, arts. 1147, 1149, to that effect.
    [Ed. Note — Eor other cases, see Homicide, Oent. Dig. § 586; Dec. Dig. @=>2S6(1).]
    3. Criminal Law @=3368(3) — Evidence—Admissibility — Attendant Circumstances— Res Gestae.
    Evidence that immediately after deceased was cut his brother entered the house and assaulted other occupants and “was drunk and seemed very mad” was a part of the res gestae, showing the situation, and should have been admitted.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 819, 821; Dec. Dig. @=> 36S(3).]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    George Carr was convicted of murder, and be appeals.
    Reversed and remanded.
    J. W. Minton, of Hemphill, and Beeman Strong, of Nacogdoches, for appellant. C. C.McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

So fan as the application of the law to the questions presented for revision is concerned, the facts may be briefly stated: The killing of deceased occurred at the house of Capps, a brother-in-law of appellant: Appellant was visiting Capps and family, Capps’ wife being the sister of appellant. There was a social function in vogue. Deceased, Royal Jordan, and his brother, Elbert, were present; both of them were more or less drinking; Elbert considerably intoxicated. In the room where the guests were assembled Elbert Jordan became boisterous. Capps insisted upon better behavior on his part, to which Elbert Jordan did not accede. Capps finally told him he must desist or get out. Some of the gentlemen present took Elbert Jordan from the house out into' the yard. Deceased came in from the yard onto the gallery when this occurred. Elbert Jordan also returned to the gallery about the time of the trouble. Deceased was standing on the gallery, where other people were also, some of the testimony showing others were close to the deceased, while some oil the testimony tended rather to isolate him a few feet. The witnesses also differ as to whether deceased did or said anything. There is testimony showing that he did not, while there is evidence also to the effect that he threatened to take the lives of one or more of them. The state’s evidence is to the effect that appellant started from the door across the gallery, passing near Elbert Jordan, and two of the witnesses testified they saw him strike with his right hand or arm; at least saw his right arm go out in the direction, of deceased, and that he was within arm’s reach. None of them saw him with any instrument of any sort in his hand. The evidence shows without question that deceased was struck by a sharp instrument of some character in the right groin, the wound being from two to three inches long and at its greatest depth about one inch. The instrument seems to have severed or punctured an artery • from which deceased died from bleeding.

The language in the indictment is this:

“By then and there cutting him with a sharp instrument, a better description of which the grand jury is unable to give, and the name of sharp instrument is unknown to the jurors.”

The only description of the instrument on the trial was that the wound was inflicted, or could have been inflicted, by a sharp instrument. There was no attempt, so far as the record shows, to show that the grand jury used any diligence to ascertain the nature or kind of instrument, or that by reason of diligence they could or could not have ascertained the character or kind of instrument used. This is made a question for revision. Under the authorities we are of opinion that the grand jury should have charged the character of instrument used if they could have obtained the information. This being a charge of murder, the character of the instrument is usually necessary to be charged, and especially so if the kind and character used could be obtained. Upon another trial this question should be met by proper evidence, and if the character of the instrument can be ascertained by the grand jury, another indictment should be obtained setting forth and describing it.

Two or three questions are presented with reference to charges given and refused, and omissions in the charge. It is contended that articles 1147 and 1149 of the Revised Penal Code of 1911 should have been given in charge to the jury; and in this connection that the jury should also have been instructed with reference to the presumption arising from the use of a weapon. Under the facts of this case the court erred in omitting charges on these matters, and also in refusing the special requested instructions. .

There is nothing to indicate in this record that the instrument was a deadly one, and in fact there is no testimony as to what kind of instrument was used, except it was a sharp one. If the weapon used was not a deadly one, it would not be presumed that appellant intended to kill, unless as under the circumstances stated in those two articles. The wound does not indicate it. Prom all the testimony, if appellant is the party who inflicted the wound, it was done by throwing out his arm and striking as he passed deceased. He did not stop, but went off the gallery. It was the only wound on the body, and if appellant struck it, he did it as stated. That the wound proved to be fatal can be accounted for in various ways without imputing to appellant the purpose and intent to kill. If appellant is the party who inflicted the wound, it seems to have been a casual wound, inflicted just in passing deceased, and the fact it happened to strike the artery was more accidental than intentional. It is a well-known rule that wherever facts are shown in submitting the theories of the defendant, a favorable view must be taken by the court in his charges; that is, the facts must be submitted under the charge so as to present favorably for the defendant his side of the case, or any weakness in the testimony that might result by the verdict of the jury in his favor. These questions have been so often decided as well as fixed by the statute it would seem hardly necessary to further discuss them. Articles 1147 and 1149, Penal Code, 1911; Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168; Reeves v. State, 74 Tex. Cr. R. 503, 168 S. W. 860; Dawson v. State, 70 Tex. Cr. R. 8, 155 S. W. 266; Wilson v. State, 49 Tex. Cr. R. 50, 90 S. W. 312; Craiger v. State, 48 Tex. Cr. R. 500, 88 S. W. 208; Hightower v. State, 56 Tex. Cr. R. 248, 119 S. W. 691, 133 Am. St. Rep. 966; Vinson v. State, 55 Tex. Cr. R. 490, 117 S. W. 846; Crow v. State, 55 Tex. Cr. R. 200, 116 S. W. 52, 21 L. R. A. (N. S.) 497; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Martinez v. State, 35 Tex. Cr. R. 386, 33 S. W. 970; Washington v. State, 53 Tex. Cr. R. 480, 110 S. W. 751, 126 Am. St. Rep. 800; Danforth v. State, 44 Tex. Cr. R. 105, 69 S. W. 159; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361; Honeywell v. State, 40 Tex. Cr. R. 199, 49 S. W. 586; Pitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584; Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893; Branch’s Criminal Law, § 434. We have discussed these charges and matters in a general way, without going into a specific enumeration of the different charges and questions.

A hill of exceptions recites that while Mrs. Capps was testifying the defendant offered to prove by her—

“that just as Royal Jordan, deceased, was out, Elbert Jordan, his brother, immediately entered the house, being the home of the sister of defendant, and assaulted, or undertook to assault, some of the occupants of said house, and that said Elbert Jordan was drunk and seemed to be very mad,” etc.

This was at the time of the trouble. The parties had barely separated at the time he «ntered the room. The deceased had just been wounded. This was a part and parcel of the transaction, and was recognized by the court in his charge to the jury on the law of self-defense. He submitted the defensive theory that appellant had the right to defend against both Royal Jordan and Elbert Jordan. The time intervening was so short that it could hardly be described in time. It was a part of the res gestee, and showed the condition of the situation and what occurred at once. Upon another trial this testimony should be admitted. See Branch’s Crim. Law, § 339.

There are some other questions in the case, but they seem to be a part of those already decided.

The judgment is reversed, and the cause remanded.
      tteoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DEISHER v. STATE.
    (No. 4308.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1916.
    Rehearing Denied Jan. 10, 1917.)
    1. Criminal Law <@=5351(10) — Evidence — Subsequent Acts of Defendant — -Threats Against Witnesses.
    A threat by accused to whip two men whom he knew were important witnesses against him was admissible as a circumstance tending to show that he was trying to prevent them from testifying.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 784; Dec. Dig. <@=5351(10).]
    2. Witnesses <@=5372(2) — Cross-Examination —Interest.
    A witness for accused can properly be cross-examined to show that he was a good friend of accused, liked him, and was doing what he could to help him, and that he was a surety on several of defendant’s bonds, and had signed defendant’s note to raise money to hire attorneys, to show the interest of the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 833, 834; Dec. Dig. <@=5372(2).]
    3. Witnesses <@=>350 — Cross-Examination— Indictment.
    The state can properly ask a witness for the defense whether he had ever been indicted, especially where he answered that he had a good record, had not had any trouble, and did not think the question a fair one.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. <@=>350.]
    4. Criminal Law <@=>1169(2) — Harmless Error-Admission of Evidence — Fact Otherwise Established.
    In a prosecution for rape of a girl under 15, where the undisputed evidence of prosecutrix and her father and mother was that she was only 13, error, if any, in admitting an entry from the family Bible in evidence, was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3138; Dee. Dig. <@=>1169(2).]
    5. Criminal Law <@=>1091(4) — Bill of Exceptions — Admission of Evidence — Sufficiency.
    A bill of exceptions to the admission of an entry in a family Bible in evidence which does not disclose the date of the birth or the age of prosecutrix as shown by the Bible entry is defective.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 2831, 2832, 2931-2933; Dec. Dig. <@=>1091(4).]
    6. Criminal Law <@=>351(10) — Evidence — Subsequent Acts of Accused — Attempt to Influence Prosecutrix.
    In a prosecution for assault on a girl under 15, where prosecutrix at first denied the act, and it appeared that accused was continuously attempting to induce prosecutrix and her parents to testify in his behalf, and not against him, evidence that a witness for the state heard accused request prosecutrix’s sister to talk to prosecutrix was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 784;. Dec. Dig. &wkey;351(10).]
    7. Ckiminai, Law <&wkey;726 — Argument oe District Attorney — Response to Depend-ant’s Argument.
    Argument of district attorney in response to and brought out by the argument of the attorney for the accused cannot be complained of.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. &wkey;726.]
    8. Criminal Law <&wkey;1037(2) — Appeal—Presenting Questions Below — Misconduct oe Prosecutor.
    The misconduct of the prosecuting attorney in his argument does not require a reversal, where accused did not request the court to charge the jury not to consider it, though he did object to it.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. &wkey; 1037(2).]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    John Deisher was convicted of rape of a girl under 15 years of age, and .he appeals.
    Affirmed.
    Chandler & Chandler and Pat. L. Pittman, all of Stephenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the offense of rape upon a girl less than 13 years and 1 month of age, and his punishment assessed at the lowest prescribed by law. The evidence was amply sufficient to sustain the conviction. Appellant in no way by his assignments or brief contends otherwise.

Will Strong and Jim Head were important state’s witnesses against appellant, and he knew it. The state had the right, therefore, to prove by Mr. Bennett, the father of the assaulted girl, that appellant, in discussing with him said witnesses in connection with his case, or their testimony in his case, said that he was going to whip them. The effect of his threat would at least tend to show that he was trying to prevent them testifying against him, and thereby suppress their testimony or prevent them testifying the truth against him. This would be a circumstance against him. The court therefore did not err in admitting said testimony which is complained of by two of appellant’s bills.

The interest, animus, bias, or prejudice of any witness, whether for the state or the defendant, can always be shown. The court did not err in requiring Mr. Poe, a material witness in his behalf, to testify on cross-examination that he was a good friend of the defendant, liked him, and was doing what he could to help him, that he was a surety on his several bonds in this matter, and that he had also signed appellant’s note to raise money to hire his lawyers to defend him in this cause. Magruder v. State, 35 Tex. Cr. R. 219, 33 S. W. 233; 1 Branch’s Ann. P. C. pp. 93, 94.

It was not error to permit the state to ask the witness Hubbard on cross-examination if he had ever been indicted (see 6 Michie’s Crim. Digest, p. 705, for cases), especially in view of his answer as follows: “I think I have a good record. I have been here seven years, and I have not had a bit of trouble. I don’t think that a fair question.” Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 55 S. W. 55; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618; Wofford v. State, 60 Tex. Cr. R. 625, 132 S. W. 929. It is needless to cite the many other cases to the same effect.

As explained by the court, appellant’s bill No. 5, as to his cross-examination of Mrs. Bennett, the assaulted girl’s mother, shows no error.

Mrs. Bennett, the mother, Myrtle Bennett, her daughter, the assaulted girl, and Mr. Bennett, her father, all swore that she was just past 13 years of age less than a month before the alleged assault was committed. There was no testimony at all showing or tending to show that she was 15 years of age or older. In other words, there was no dispute of the fact that the assaulted girl was just past 13 years of age. Hence, even if the torn leaf from the Bennetts’ Bible, whether the original entry or a copy of it, was erroneously admitted in evidence over appellant’s objection, it was immaterial, and its admission, even though erroneous, presents no reversible error, Haywood v. State, 61 Tex. Cr. R. 92, 134 S. W. 218; Lott v. State, 66 Tex. Cr. R. 152, 146 S. W. 544; Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 67; Henkel v. State, 27 Tex. App. 510, 11 S. W. 671; Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538; Nelson v. State, 35 Tex. Cr. R. 205, 32 S. W. 900; Tracy v. State, 44 Tex. 9; Height v. State, 68 Tex. Cr. R. 278, 150 S. W. 908; Veal v. State, 8 Tex. App. 477; Gaston v. State, 11 Tex. App. 143.

Besides this, the bill attempting to present the matter is wholly defective, in that it does not disclose the date of the birth of said Myrtle nor her age in said purported Bible entry. And we cannot tell therefrom what the date of her birth nor age was.

Myrtle Bennett, said assaulted girl, among other things, testified positively to the act of intercourse appellant had with her as alleged in the indictment. On his cross-examination of her she admitted that at first, just after the act, and on more than one occasion, she had denied that he had had said act with her. The state’s witness Head testified that after appellant had an examining trial and was bound over he saw him with Leah Bennett, Myrtle’s sister, at the depot in Alexander, and that appellant said to her that he wanted her to talk to Myrtle, and she replied: “We are talking to her all the time.” The court therefore did not err in permitting Myrtle to testify that her sister Leah talked with her and tried to get her not to tell anything on appellant. It is clear from the record that appellant was doing all he could practically continuously from the time it first became known that he was charged with said assault to induce all of the Bennetts, Myrtle and her father and mother, to testify in his behalf, and not against him. Under the circumstances said testimony of Myrtle complained of by him was properly admitted..

Appellant has three bills complaining of the argument of the prosecuting attorneys. In one it is clearly shown that the argument of the district attorney was in response to, and brought about "by, his attorney’s argument. The other two instances complained of present no error. The district attorney had the right to make the argument complained of. Edwards v. State, 75 Tex. Cr. R. 647, 172 S. W. 230, 231, and the many authorities there cited; Harding v. State, 49 Tex. Cr. R. 604, 95 S. W. 528; Mooney v. State, 176 S. W. 57, and cases there cited and rules established; Bass v. State, 16 Tex. App. 69; Pierson v. State, 18 Tex. App. 524; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; House v. State, 19 Tex. App. 227; and a great many other cases.

While appellant’s bills show he objected to said arguments, he in no way requested the court to charge the jury not to consider them, even if they had been improper. Mooney v. State, 176 S. W. 58, and eases there cited. In no event do appellant’s bills as to the said argument present any reversible error.

Appellant has three several bills claiming that the court committed an error in not sustaining his challenge to three jurors respectively. Each bill; however, as qualified by the court, shows that each of said jurors was a qualified and competent juror. Neither of appellant’s bills shows that he had exhausted his challenges, and they all show that neither of these jurors sat upon the jury. Neither of his bills shows that any incompetent or improper juror was forced upon him. He merely complains generally that he took jurors to whom he would have objected if the court had sustained his objections. It is so well established that neither of appellant’s bills presents any error that it is needless to cite the authorities. They are numerous and uniform to the effect that no error is presented by either of said bills.

The judgment is affirmed.

HARPER, J., absent.
      <§=»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <&s»For other cases see same topic an’d KBY-NXJMBBR in all Key-Numbered Digests and Indexes


text:
    CARTER v. STATE.
    (No. 4303.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.
    Rehearing Denied Jan. 10, 1917.)
    Criminal Law <@^1092(7), 1099(6) — Akpeal and Error — Statement—Bills or Exception.
    Where the trial court inadvertently or erroneously allowed accused 90 days after adjournment to file a statement of fact and bills of exception, the order for any additional time after 90 days from sentence was void, and a statement and bills of exception, filed 112 days from sentence, will not be considered.
    DUd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S50, 2852-2854, 2877; Dec. Dig. <@=ol092(7), 1099(6).]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Bill Carter was convicted of murder, and appeals.
    Affirmed.
    S. W. Bishop and J. B. McEntire, both of Gorman, and J. R. Stubblefield, of Eastland, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at ten years to the penitentiary.

This is the third appeal in this cause; the others are reported in 75 Tex. Cr. R. 110, 170 S. W. 739, and 183 S. W. 881, respectively.

The court in which he was convicted, by law, could continue more than eight weeks, and as a fact, the term at which he was convicted, did continue longer than eight weeks. It convened April 17th and adjourned July 8, 1916. He was convicted and judgment rendered May 11, 1916. His motion for a new trial was overruled on June 6th, at which time he was duly sentenced, and gave notice of ■ appeal to this court, all of which was then and there duly entered in the minutes of the court. At this time, the court, inadvertently or erroneously allowed appellant 90 days after adjournment to prepare and file a statement of facts and bills of exceptions, when under the statute and all the decisions of this court thereunder plainly and without doubt he could allow only 90 days from the date of sentence. His order, therefore, for any additional time after 90 days from sentence was without power, ineffectual, and void. The decisions of this court so holding are so numerous, certain, and uniform it is unnecessary, and a useless task, to collate and cite them. On this point there has been “no variableness, neither shadow of turning,” by this court or its decisions.

The statement of facts and all bills of exceptions were filed September 26, 1916, which was 112 days after sentence, and 21 days too late. Therefore, the Assistant Attorney General’s motion to strike them out and not consider them must be, and is, sustained, and they cannot be considered. There is nothing we can review without them.

The judgment must therefore be affirmed; and it is so ordered.

HARPER, J., absent.
      <S=»For other oases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


text:
    BELL et al. v. STATE.
    (No. 4319.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.)
    1. Criminal Law <§=>747 — Witnesses — Credibility — Questions fob Juey.
    Under conflicting evidence, credibility of the witnesses is a question for the jury.
    [Ed. Note. — For other cases,. se.e Criminal Law, Cent.Dig. §§ 1714,1727; Dec.Dig. <§=>747.]
    2. Criminal Law <@=>792(2) — Principals—Instructions.
    Where the state’s evidence tended to show that one defendant held the deceased while the other defendant shot him, it is proper to charge the law of principals as to the first defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dee. Dig. <§=> 792(2).]
    3. Criminal Law <§=>1153(2) — Witnesses — Competency.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 788, providing that all persons are competent to testify in criminal actions except insane, and children who, after examination, appear not to possess sufficient intellect or do not understand the obligation of an oath, the court will not revise the judge’s order permitting deceased’s seven-year old son to testify as to the facts of the homicide in the absence of showing that the discretion of the court was abused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3062; Dec. Dig. <§=>1153(2).]
    4. Criminat, Law <§=>700 — Trial—Statement or1 Case.
    Vernon’s Ann. Code Or. Proc. 1916, art. 717, subdiv. 3, requiring the prosecuting attorney to state to the jury the nature of the accusation and the facts expected to be proved, is directory, not mandatory, and in the absence of injury because of omission of such statement, there was no error.
    [Ed. Note — Por other cases, see Criminal Law, Cent. Dig. §§ 1658, 1659; Dec. Dig. <§=> 700.]
    5. Homicide <§=>169(1) — Evidence—Admissibility.
    In a prosecution for murder defended on the ground of self-defense, it was proper to exclude testimony that deceased on the morning of the homicide passed near the witness’ house, did not speak to her, and appeared to be in a solemn mood.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 341; Dec. Dig- <@=>169(1).]
    6. Criminal Law <§=>1137(3) — Appeal —Invited Error.
    Accused persons cannot complain of instructions literally following the special charge requested by them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3009; Dec. Dig. <§=>1137(3).]
    7. Criminal Law <§=>822(1) — Instructions— Construction.
    When any part of the charge is attacked, the whole charge must be looked to, and if no injury is shown on the perusal of the whole charge, there is no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1994, 3158; Dec. Dig. <§=>822(1).]
    8. Criminal Law <§=>1172(1) — Instructions— Prejudice.
    Where accused objected to the charge on principals, and the court then stated that he ■would give the charge requested by accused and withdraw his own charge, but through error withdrew only a part thereof, but his attention was not called to it until the motion for new trial, accused was not prejudiced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154; Dec. Dig. <§=> 1172(1).]
    9. Criminal Law <@=>1144(6) — Appeal—Presumptions.
    Where the record showed a motion for change of venue, which was contested, but failed to show what testimony was heard, the legal presumption is that the court’s action was right.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2740, 2757, 2901, 3021; Dec. Dig. <@=>1144(6).]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    John F. and Jim Bell were convicted of murder, and they appeal.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were convicted of murder, and tbeir punishment assessed at life imprisonment.

J. T. Dawes was the man whom they are alleged to have killed by shooting with a pistol and striking him with a stick and file. The undisputed testimony by many witnesses shows that the body of deceased was most brutally and horribly shot up, and beaten up from the crown of his head nearly to the soles of his feet, at least to the tops of his shoes. The state’s testimony, which was ample, and evidently believed by the jury and lower court, by an eyewitness and through corroborating testimony, showed that appellant John F. Bell held deceased while Jim Bell ■shot him three times after he had beaten him up. The testimony of defendants — both testified — raised the issue of self-defense. The state’s testimony disputed this and was amply sufficient to show that the killing was not in self-defense. The issue was fully presented in the court’s charge, to which there was no complaint. It was proper also for the court to charge the law of principals as to John F. Bell, which he did. There was some testimony tending to impeach the testimony of some of the material witnesses on both sides, but all this was a matter for the jury, and proper charges were given on the subject. It is unnecessary to detail the testimony. All issues raised can be passed upon without that.

One of the state’s main witnesses was the son of deceased, who was an eyewitness to the beating and killing. He was some two or three months over seven years of age. The appellants objected to his testifying, claiming that he was incompetent. The trial judge, after an examination of him, held he was competent, stating that he regarded him as having more than ordinary intelligence for his age, and refers to his entire testimony as bearing on his competency. The court has all the time held under the statute (Vernon’s Ann. Code Or. Proc. 1916, art. 788, subdiv. 2) that the competency of a witness of tender years is determinable by an examination by the trial judge, and the action of the trial court thereon will not be revised on appeal in the absence of a showing that its discretion holding the witness competent was abused, and unless abuse of such discretion is apparent. This proposi-ticm is plainly laid down and a great many decisions of this court cited by both Judge "White in his An. C. O. P. § 951 et seq., and 2 Branch’s An. P. C. § 1771. Under the authorities, we think it is dear the trial judge did not abuse his discretion, and we would not be authorized to so hold, and we hold that the witness was competent.

It has all the time been held by this court that subdivision 8, art. 717, Vernon’s Ann. Code Or. Proc. 1916, to the effect that the prosecuting attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved before introducing his testimony, is directory and not mandatory, and that no error is shown when the trial court does not require the prosecuting officer to make such statement, unless injury 'because thereof is shown. In this ease we think no injury is shown because the prosecuting officer did not make such statement, and hence no error is presented in the court’s refusal to require him to do so. Holsey v. State, 24 Tex. Cr. R. 35, 5 S. W. 523; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; House v. State, 75 Tex. Cr. R. 341, 171 S. W. 206.

The court committed no error in not permitting Mrs. Beard to testify that the deceased, in passing her house the morning before he was killed, passed along near her house, and did not speak to her or raise his head, and was looking down toward the ground, and appeared to be in rather a solemn mood. This testimony had no bearing whatever upon the case, and had no connection with the killing.

In preliminarily stating the case to the jury, the court in one sentence told the jury:

“In this case the defendants being jointly indicted, both may be convicted of murder, or one may be convicted and the other acquitted.”

This sentence literally followed a special charge which appellants requested. Besides, it could have caused no injury to appellants, or either of them, in view of the whole charge of the court, which of course must be looked to when any given sentence or paragraph is attacked.

The testimony called for a charge on the law of principals. The judge, in preparing his original main charge, embodied a charge on that subject. After preparing it, he gave it to appellants’ attorneys for examination, etc.,', under the statute. They thereupon objected to his whole charge on that subject, and in lieu and instead of the court’s charge they asked a charge on the subject. The court then told them that he would take out of his charge what he had given on the subject and give their charge literally, as asked by them, instead, and he undertook to do this. He did give their charge in full just as asked. By some mishap, in undertaking to take out his charge on the subject, only a portion of it was taken out. The portion not taken out was general as to who were principals under the law of principals. Appellants in no way called his attention at the time to the fact that only a portion of his charge had been taken out, and his attention was not called thereto until the appellants made their motion for a new trial. All this is made clear by appellants’ bill and the court’s explanation and qualification thereof, as shown in the record. This presents no reversible error under the circumstances stated. We cannot see how it would or did injure the defendants, or either of them.

Appellants made a motion for a change of venue. It was properly contested by the state. Evidently the court must have heard testimony on it, but what testimony he heard! is in no way disclosed by this record. The legal presumption is that the court’s action on this point was clearly right.

No other question is presented for review.

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


text:
    JENNINGS v. STATE.
    (No. 4312.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.)
    1. Criminal Law <S^200(7) — Fobmeb Jeopardy — -Statute.
    Pen. Code 1911, art. 1317, provides that if a house be burglarized and the person guilty of such burglary shall, after so entering,, commit any offense, he shall be punished for burglary, and also for whatever other offense is committed, and article 1318, providing that if the burglary was effected to commit one felony and the person guilty thereof while in the house committed another felony, he shall be punishable for any felony so committed as well as the burglary. Defendant, in a prosecution for an assault with intent to commit rape, pleaded former jeopardy, alleging that he had formerly been indicted for burglary with intent to ravish the named woman in the house at the time, and had been acquitted. Held, that the sustaining of a demurrer to the plea and the exclusion of all testimony in support of it was proper.
    [E'd. Note. — Por other cases, see Criminal Law, Cent. Dig. § 403; Dec. Dig. @=>200(7).]

      2. Criminal Law <§=363 — Rape <@=48(1) — Evidence — Res Gesms.
    In a prosecution for an assault with intent to rape, the statements of the assaulted party testified to by certain witnesses and by such party herself, and her statement soon afterwards to others complaining of the injury inflicted by defendant, and their testimony as to the conditions of her clothes and person and bed and room, where it is alleged the assault occurred, were res gestae, and admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig; <@=363; Rape, Cent. Dig. § 67; Dec. Dig. <@¿348(1).]
    3. Rape <§=40(3) — Evidence—Character op Prosecutrix.
    Evidence that the prosecutrix had theretofore lived with another man at her house, and had had an illegitimate child, and had been compelled to leave her home on account of her immoral relations with men, was inadmissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 57; Dec. Dig. ©=40(3).]
    4. Rape <@=59(1) — Trial — Submission oe Defenses.
    Where defendant’s testimony made an issue as to self-defense, or as to his going to see prose-cutrix that night at her invitation and having sexual intercourse with her as testified by him, the failure to submit such defenses was reversible error.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 88; Dec. Dig. <@=59(1).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Raphael Jennings was convicted of an assault with intent to rape, and he appeals.
    Reversed, and cause remanded.
    I. N. Williams, of Mt. Pleasant, and Seb F. Caldwell, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to rape, and assessed the lowest punishment.

He pleaded former jeopardy. His plea alleged that he had formerly been indicted for burglary with intent to ravish Tina Carter, a woman, in said house at the time, and that on the trial therefor he was acquitted. The court properly sustained a demurrer to this plea and excluded all proffered testimony to prove it. The court’s action was in accordance with the statute and the many decisions thereunder. Articles 1317,1318, P. C., and decisions thereunder.

The statements of the alleged assaulted woman made to, and testified by, Gus Rutherford and his wife, and by her also, were clearly res gestas, and admissible, and so were her statements soon thereafterwards made to others complaining of the injuries which she claimed were inflicted upon her at the time by appellant, and their testimony as to the conditions of her clothes and person and bed and room, where it is alleged the assault occurred.

The court did not err in refusing to permit Mollie Crosby to testify in substance that the alleged assaulted woman had theretofore lived with another man at her house, and that she had had an illegitimate child, and that she had been compelled to have her leave her home on account of her immoral relations with men. Wood v. State, 189 S. W. 474, recently decided, but not yet officially reported, and authorities therein cited.

Without reciting all of it, the testimony of the alleged assaulted woman was to the effect: That appellant came to her house where she was living alone between 1 and 2 o’clock at night when she was asleep. That his coming into her room must have awakened her, for the first she saw of him was when he was standing at her bed with a lighted match. She asked who it was, and he told her. She asked what he wanted, and he told her that he had come to see her to have sexual intercourse with her. That she refused to do this, ordered him away, and that thereupon he violently assaulted, choked, and beat her in an attempt to have intercourse with her.

Appellant testified: That prior to this time he had been with her many times and had repeatedly previously thereto had sexual intercourse with her with her full consent. That on the evening this assault occurred at night she met him on the streets in town and specially invited him to come down to see her that night and have sexual intercourse with her, and that he went at her invitation at the time she says he was there. That when he reached there he knocked on the door. She responded, asking who it was, when he told her, and that she got up and let him in. That he thereupon, with her full consent, went to bed with her, stayed with her some two hours, and during the time had two acts of sexual intercourse with her with her full consent. That just after this last act, she wanted him to pay her $1 for his pleasure with her. That he told her he had no money and did not pay her. That it was solely because of his failure and refusal to pay her the dollar at the time that she got mad at him, assaulted him, and that his assault of her thereupon followed and was wholly in self-defense from his testimony and standpoint. He introduced more or less testimony tending to show his prior previous relations with the woman as he testified he had had and of meeting her in the town the evening before and having said engagement with her to go out and stay with her that night.

The court in his charge did not submit either of his claimed defenses, that of self-defense or his going to see her that night at her invitation and having sexual intercourse with her as testified by him, and that he in no way assaulted her for the purpose or with the intention of having sexual intercourse with her. Appellant objected to the court’s charge for failure to submit his claimed self-defense, and asked a charge on the subject himself, which the court refused. He also asked a charge on his other defense, as stated, which the court refused. In our opinion, the court’s action in both of these particulars was material error against appellant. It is unnecessary to discuss these questions. The mere statement of them shows material error against appellant, for which the judgment must he reversed.

While appellant assigns error in the refusal of other special charges requested by him, none of them present any error.

For the errors pointed out, the judgment is reversed, and the cause remanded
      @=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿oz=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    ROBERTSON et al. v. HAYNES et al.
    (No. 8450.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 28, 1916.
    Rehearing Denied Dec. 16, 1916.)
    1. Pleading ©=>214(1) — Demurrer — Admission.
    Allegations of the petition must be taken as true as against general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525, 529; Dec. Dig. ©=214(1).]
    2. Elections ©=>271 — Contest—Grounds.
    Property owners of a common school district could have successfully' contested the election determining whether a special tax should he levied and collected upon property in the district by proving that two qualified voters cast their votes against the tax, but the votes were wrongfully and illegally thrown out and not counted by the judges, and that a qualified voter was denied tie privilege of casting his ballot, though he offered to make the statutory oath as to his legal qualifications; the result of the election having been in favor of levying the tax by a vote of 24 to 22.
    [Ed. Note. — For other cases, see Ejections, Cent. Dig. § 248; Dec. Dig. <©=>271.]
    3. Elections <©=>269 — Statutory Remedy eob Irregularities — Exclusive Character.
    The remedy given by the statutes of the state relative to election contests for irregularities in elections, such as the illegal throwing out of votes or denying to qualified voters the right to vote, is exclusive of all others, so that the validity of an election as to whether a special school tax should be levied and collected upon property in a common school district could not be attacked by suit to enjoin its levy and collection.
    [Ed. Note. — For other eases, see Elections, Cent. Dig. §§ 245, 246; Dec. Dig. ©=>269.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Suit toy S. H. Robertson and another against J. B. Haynes and others. From a judgment sustaining a general demurrer to the petition and dismissing the cause of action, plaintiffs appeal.
    Judgment affirmed.
    W. H. Spinks, of Alvarado, for appellants. W. E. Myers, of Cleburne, for appellees.
   DUNKLIN, J.

Pursuant to an order of the commissioners’ court of Johnson county, an election was held in common school district No. 27 of that county, for the purpose of determining whether or not a special tax of 15 cents on the $100 should be levied and •collected upon'property in that district. The returns made to the court by the judges of that election showed that 24 votes were cast in favor of the levy of such a tax and 22 votes cast against it. After canvassing said returns, the commissioners’ court, by an order. drily made, declared the election in favor of said tax carried, levied the special tax against the property situated in that district, and directed the assessment and collection of the same. This suit was instituted by S. H. Robertson and S. J. Howeth against the county commissioners, the county judge, the trustees of the school district, the county superintendent of public schools, and the county assessor and county tax collector, to enjoin the levy and assessment of said special tax, and, from a judgment sustaining a general demurrer to the petition and dismissing the cause of action, the plaintiffs have appealed.

The allegations contained in the petition must, as against the general demurrer, be taken as true as a matter of course. The facts recited above were alleged in the petition, and in addition thereto it was alleged that D. 0. Jackson- and George James, who resided in said school district, were qualified voters in said election, and who owned property situated in said district subject to such special tax, cast their votes at said election against the school tax, but the votes were wrongfully and illegally thrown out, and not ■counted by the judges of said election; that, had said votes been counted, the returns made upon said election would have shown 24 votes against the school tax and 24 votes for the school tax, and, in the event of such a tie, the special school tax could not and would not have been levied. According to further allegations in the petition, the votes cast by said Jackson and James were not challenged by the judges, or any one else, and, had they been challenged, those voters would have made the necessary statutory-oath to entitle them to vote, and they did not know that their votes would not be counted by the judges until after the returns of the election had been made.

According to- further allegations in the petition, R. D. McFadden, who was also a qualified voter under the laws of the state, residing in said school district and owning property situated therein subject to such tax, attempted to cast his ballot in said election, but was denied the privilege of so doing by the judges of said election, notwithstanding the fact that he offered to make the statutory oath to said judges of his legal qualifications to vote, which offer was declined by the judges, and had he been permitted to vote he would have cast his ballot against said school tax.’ Had his vote been received and had the votes of Jackson and James been counted, the returns of the election would then have shown 24 votes cast for the school tax and 25 against it, thus ’defeating the special tax levied.

Appellants invoke subdivision 1 of article 4643, Vernon’s Sayles’ Texas Civil Statutes, which provides that the judges of the district and county courts may hear and determine all applications for writs of injunction, and grant such writs “where it shall appear that the party applying for such writ is entitled to the relief • demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.” And such decisions of our courts as Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, and Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 42, are cited to support the contention that the court had jurisdiction to hear and determine the cause of action alleged in their petition, independent of the further questions whether or not plaintiffs had an adequate remedy at law, and whether or not such relief could be given by a court of equity under the rules of equity jurisprudence.

It cannot be doubted that plaintiffs could have successfully contested the election by proving the facts alleged in their petition referred to already, and it is well settled by the decisions of this state that the remedy so given by the statutes for such irregularities in elections is exclusive of all others. See Davis v. Parks, 157 S. W. 449; El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Parker v. Drainage District, 148 S. W. 351; Wharton County Drainage District v. Higbee, 149 S. W. 381; Boesch v. Byrom, 37 Tex. Civ. App. 35, 83 S. W. 18; Coffman v. Goree Independent School District, 141 S. W. 132; Troutmen v. McClesky, 7 Tex. Civ. App. 561, 27 S. W. 173; Wilbern v. Cone, 148 S. W. 818; Crabb v. Celeste Independent School District, 132 S. W. 890; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440.

The only opinion which wé have found which might possibly be construed as contrary to that line of) decisions is Cochran v. Kennon, 161 S. W. 67, by the Court of Civil Appeals for the First District; but, as shown by the opinion itself, a distinction, is drawn between that case and the cases cited above, by reason of the fact that in that case the sole attack upon the tax levy was based upon the fact that the statutory notices necessary to an election for the purpose of determining whether or not a special school tax should be levied were not given, and the conclusion of the Court of Civil Appeals was that such an attack would not be available in a contest of the election, and that injunctive relief to restrain the levy of the tax was the only remedy open to the taxpayer.

Upon the face of the returns the levy of the tax was proper. The facts alleged in the petition as a basis for the attack made upon the election consisted of irregularities which could be invoked only by a contest of the election. To hold otherwise would be to say that every taxpayer in the district could prosecute a suit of the same kind and on the same grounds with probably varying results, thus leading to a multiplicity of suits, and interminable confusion and uncertainty, which the statutes giving the right to such persons to contest the felection evidently were intended to avoid.

Hence we are of the opinion that the court did not err in sustaining the general demurrer to plaintiff’s petition, and that the judgment should be affirmed.
      ©=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCKVJ.

text:
    WIGGINS v. WAGLEY et al.
    (No. 8485.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 2, 1916.)
    1. Vendob and Pubchaseb <@=>267 — Vendob’s Lien — Subsequent Sales — Liability of Pabcels.
    When the vendor of a tract has notice that the purchaser has subsequently sold it in parcels, the right to foreclose the vendor’s lien against the whole tract or any parcel is subject to the right of the parcel owners to have the parcels subjected to the payment of the lien in the inverse order of their alienation, and if the vendor releases any parcel from the lien, owners whose purchases preceded that of tho parcel released are relieved from the lien to the extent of the value of the land released.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. <@=>267.]
    2. Judgment <@=>707 — Conclusiveness—Pabties Concluded.
    A junior incumbrancer or lienholder, of whose rights the senior lienholder had notice when he’sued to foreclose, and who was not joined as a party, is not bound by the judgment of foreclosure in so far as it affects his equities.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. <@=>707.]
    3. Vendob and Pubchaseb <@=>267 — -Vendob’s Lien — Release of Pabt — Effect.
    The release from a vendor’s lien of a part of a tract of land whose value Was sufficient to pay the amount then due discharges parcels previously sold from the lien, though before foreclosure suit the amount of the lien has been increased to more than the value of the property released.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. <@=>267.]
    Appeal from 'District Court, Callahan County; Thomas L. Blanton, Judge.
    Trespass to try title by J. H. Wiggins against H. Wagley and others. From separate judgments awarding plaintiff a lieD upon the land for a part only of the amount claimed by him, and determining the liability of the .several defendants among themselves, the plaintiff appeals and defendants Wagley and others assign cross-errors.
    Judgment reversed in so far as it subjected the land to plaintiff’s claim, cross-assignments sustained, and judgment rendered for defendants.

      Russell & Surles and F. S. Bell, all of Baird, for appellant. J. Rupert Jackson, of Baird, J. J. Butts, of Cisco, and W. R. Ely, of Baird, for appellees.
   BUCKVJ.

On April 27,1915, in the district court of Callahan county, appellant sued ap-pellees, H. Wagley and W. P. Ledbetter, in trespass to try title to recover a tract of 409.8 acres of land in Callahan county. Ap-pellees L. E. Threet, R. B. Bishop, John H. Garner, C. H. Daniels, and J. J. Ray were by Wagley and Ledbetter made parties defendant. Plaintiff appeals from a judgment (1)in favor of defendant L. P. Threet as to the 80 acres of land owned by him; (2) in favor of plaintiff against defendants Ledbet-ter, Wagley, and Ray, respectively, subjecting their lands, in the order named, to the payment of a judgment for $821.63, rendered in the district court of Rusk county, in a certain suit wherein plaintiff in the instant ease was plaintiff, and W. F. Turner was defendant, less a credit of $800, the agreed value of the 80 acres of land held by Threet, and released May 31, 1909, by Wiggins to A. L. Cole; (3) in favor of defendant Bishop; (4) in favor of Ledbetter, as against his immediate vendor, Daniels, for any amount the former might be forced to pay by reason of this judgment; (5) in favor of Wagley against his predecessor in title, Garner, for any amount the said Wagley should be forced to pay by reason of said judgment.

The following state of facts is supported by the court’s findings and the statement of facts, to wit:

(1) June 6, 1903, J. H. Wiggins by deed conveyed to W. F. Turner the 409.8-acre tract mentioned, retaining a vendor’s lien to secure the payment of five vendor’s lien notes of even date, each in the principal sum of $350, bearing 8 per cent, interest from date, and due' November 1, 1904, 1905, 1906, 1907, and 1908, respectively, said deed being duly filed for record January 6, 1904.

(2) January 1, 1904, Turner, by deed, conveyed to R. L. Ray 123 acres out of said 409.8-acre tract, and Ray assumed to pay, and thereafter did pay, notes 1, 3, 4, and 5 of the original series. Said deed was recorded January 18, 1907. December 2, 1905, R. L. ■Ray conveyed this 123-acre tract to J. J. Ray, one of the defendants, the deed being recorded June 1, 1914.

(3) February 8, 1905, Turner conveyed by deed to J. W. Newton 125 acres out of the 409.8-acre survey, and by mesne conveyances the title thereto became vested in H. Wagley, one of the defendants herein, by deed from J. O. Cook, dated September 7, 1907, recbrded December 30, 1907.

(4) April 13, 1906, Turner conveyed to J. C. Whisenant 160 acres out of the said original tract, apparently intended to be all of the remainder left after the conveyance to Newton, and by mesne conveyances the title thereto was vested by deed dated July 3, 1906, and recorded December 14, 1906, in A. L. Cole.

(5) At this stage in the transfers, the remaining 160 acres was divided, Cole conveying the west one-half to J. W. Watson, October 28, 1907, the deed being recorded January 6, 1909; then by mesne conveyances the title thereto became vested October 2, 1909, in W. P. Ledbetter, one of the defendants.

(6) By deed dated March 12, 1909, Cole conveyed the east one-half of the 160-acre tract to C. H. Brown, and by mesne conveyances, on October 1, 1913, the title thereto became vested in L. F. Threet, one of the defendants.

(7) January 18, J909, Wiggins executed a release of the vendor’s lien retained, as to notes 1, 3, 4, and 5, said release being filed for record March 25, 1909.

(8) March 31, 1909, Wiggins executed a release in favor of A. L. Cole, discharging the cast one-half of the 160-aere tract from the vendor’s lien to secure the payment of purchase-money note No. 2, executed by Turner.

(9) This 80-acre tract, being the east one-half of the 160-acre tract, was at the time of said release to Cole, and at the time of the trial, of the reasonable value of $800. ■

(10) January 6, 1914, Wiggins recovered against Turner in the district court of Rusk county a judgment for $821.63, presumably the amount of note No. 2, with interest and attorney’s fees, with a foreclosure of the vendor’s lien. None of the defendants in the instant case were parties to this suit,- Turner being the only defendant, though the trial court found that at the time of the said suit and judgment Wiggins had notice of the alienation of parcels of the original 409.8-acre tract, which had then been made.

(11) Under the order of sale issued by virtue of the aforesaid judgment, the sheriff of Callahan county levied upon and sold the 409.8-acre tract, except the 80 acres owned by Threet, and theretofore released by Wiggins, and the 123 acres owned by J. J. Ray. The latter secured a writ, enjoining the sale as to his 123 acres. Wiggins purchased the land under this sale for $885, and received a sheriff’s deed, and, after satisfying the costs, the judgment recovered in Rusk county was credited with the $844.47. It was agreed that the sheriff’s return on the order of sale showed, that he had complied with the requirements of law in advertising and selling said land, and that the recitals in the sheriff’s deed show such compliance.

The appellees Wagley and Ledbetter, by proper pleas, in the trial court urged their right to have the land subjected to the payment of the debt secured by the vendor’s lien in the inverse order of alienation, and that the SO acres owned by Threet at the time of the trial, being tlie last alienated, should have been resorted to first to satisfy plaintiff’s debt, and that said 80 acres owned by Threet was, at the time of said release and ever since then, of a reasonable value in excess of the balance of the purchase price due said plaintiff, as evidenced by the said note No. 2, and therefore said defendants Led-better and Wagley were acquitted and discharged of any further indebtedness or liability by reason of said vendor’s lien retained.

Appellant, Wiggins, by several assignments urges error in the trial court’s action: (1) In overruling plaintiff’s general demurrer; (2) in overruling plaintiff’s motion for new trial; (3) in rendering judgment to the effect that the Rusk county judgment was not binding upon appellees. But there is, in our opinion, presented in these assignments only one question, to wit, Is the Rusk county judgment res adjudicata, and, therefore, conclusive, against defendants as to their right to have the several parcels out of the original 409.8-acre tract subjected to the payment of the purchase-money debt in the inverse order of the alienation of said several parcels?-

We will first consider the question of the rights of appellees herein had they been made parties to the Rusk county suit. If the vendor in an executory contract to sell land elects to rely on his right of foreclosure, where parcels of the land covered by the vendor’s lien have been separately sold, with notice to the vendor, the equities affect him to such an extent that he cannot deal with the whole premises, or with any parcel thereof, or with the owner of any parcel by release or agreement, so as to disturb the equities subsisting among the various owners, or to destroy the rights of precedence in the order of liability, or to defeat the rights of ratable contribution, or of complete or partial exoneration. Burson v. Blackley et al., 67 Tex. 5, 11, 2 S. W. 668, 671. The following statement of the principles applying are quoted with approval by our Supreme Court in the cited case, to wit:

“The release of one parcel or share would release all the other parcels from the same proportionate amount of their respective original liabilities which the value of the part released bears to the total value of the mortgaged premises; one owner being released, all the others are entitled to a pro rata abatement. When the equities of the various owners are unequal, so that their respective parcels are liable in the inverse order of alienation, if the mortgagee, having notice of this situation, releases a parcel which is primarily liable, he thereby discharges or releases all those parcels which are subsequently liable, in the order of their several liabilities, from an amount of the mortgage debt equal to the value of the parcel released. If the value of the parcel released equals the mortgage debt, then all the subsequent parcels are wholly relieved from liability; if the value is less than the mortgage debt, the subsequent parcels can at most be liable in their order only for the excess of the debt over such value.”

As held in this ease, the rule with reference to mortgagors and mortgagees applies to vendors and vendees. See Lattimore v. Provine et al., 29 Tex. Civ. App. 111, 69 S. W. 222 (writ denied). When the vendor of a large tract of land has notice that a purchaser has subsequently sold parcels thereof, his right of foreclosure against the whole tract, or against any parcel or parcels thereof, is subject to the right of such parcel owners to have the parcels subjected to the payment of the purchase-money debt in the inverse order of their alienation, and if such vendor, with such notice, shall release any parcel from the vendor’s lien, such parcel owners whose purchases preceded that of a parcel owner whose land is so released are relieved from the payment of the original purchase debt to the extent of the value of the land so released. Vansickle v. Watson, 103 Tex. 37, 123 S. W. 112. A lien-holder cannot release part of the land subject to his lien, to the damage of one who purchased or secured an incumbrance on another part of the land prior to the release. First State Bank of Teague v. Cox, 139 S. W. 1. Hence, we conclude that had the ap-pellees herein been made parties to the original suit, they could have required that the parcel of land primarily chargeable with and liable for the debt, to wit, the tract owned by Threet, being the last in order of alienation, should first be subjected to the payment of the debt, and that if its value was in excess of such debt at the time of said release, appellees would have been released from any liability.

That a subsequent incumbrancer or junior lienholder, of whose status and rights the holder of the senior lien had notice at the time of the institution of a suit for foreclosure, and who was not made a party to the original suit, is not bound by said judgment in so far as his right to have his equities adjudicated is concerned is well established by the authorities. Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821; Spencer v. Jones, 92 Tex. 516, 50 S. W. 118, 71 Am. St. Rep. 870; Ballard v. Carter, 71 Tex. 161, 9 S. W. 92; Gamble v. Martin, 151. S. W. 327 (writ denied). We, therefore, conclude that appellant’s three assignments, improperly numbered 1, 6, and 12, must be overruled ; and it is so ordered.

We now come to the consideration of appellees’ cross-assignment, to the effect that the court erred in holding and adjudging that the lands owned by appellees Ledbetter and Wagley, in the order named, were liable for and chargeable with the payment of the balance due on the Rusk county judgment of $821.63, less the value of the 80 acres owned by and released to L. F. Threet, on the ground that the evidence shows, and the court so finds, that, at the date of said release, to wit, March 31, 1909, said SO acres was of the value of $800, and that at said time the balance due the plaintiff was less than said amount, and that the liability of defendants Ledbetter and Wagley, at said time, was fixed by and limited to the amount then so due plaintiff. We are of the opinion that the contention made in the cross-assignment is well taken. The amount due on note No. 2, March 31, 1909, even including attorney’s tees, was less than $600. At this time note No. 2 was long past due, and, had suit been brought thereon by plaintiff at said time, it is apparent that he could have satisfied his debt out of that parcel of the land primarily liable therefor, and we do not think that because at said time he failed to enforce his right of payment, but elected to wait until such time as such debt, including accrued interest, attorney’s fees, and costs, should exceed the value of the Threet tract, he ought to be permitted to subject the land of defendants to the payment of such excess.

We, therefore', sustain appellees’ cross-assignment, and reverse the judgment of the court below, in so far as it made appellees’ land liable for the excess, and hereby render judgment, discharging and releasing the lands of appellees from the payment of any part of appellant’s judgment or lien, and from the decree of foreclosure rendered in the district court of Eusk county in the case of Wiggins v. Turner; appellees to recover all costs as against appellant.
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