text:
    FINKS v. STATE.
    (No. 4998.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. CRIMINAL Law <&wkey;>126(2) — Change of Venue — Local Prejudice.
    Where about 95 per cent, of those summoned as jurors had prejudged a murder case, and a strong combination of influential people in the county had gone so far as to threaten those who signed defendant’s bond, held, in view of the fact that officers of the law had whipped witnesses in an endeavor to make them testify against defendant, that defendant was entitled to a change of venue.
    2. Criminal Law <&wkey;556 — Conclusiveness of Testimony.
    Where the state cross-questioned defendant’s witness as to whether he did not make certain statements in the absence of defendant, and the witness denied making the statements, the state was bound by his answer.
    3. Criminal Law <&wkey;417(2) — Evidence — Declarations.
    In a murder trial, evidence that defendant’s brother-in-law stated that the watch of the deceased could be obtained by the sheriff if the latter would go down to a negro’s house is inadmissible ; the conversations being between third persons not in the presence of the defendant.
    4. Witnesses <&wkey;330(l) — Cross-Examination — Impeachment. ,
    The state cannot, on cross-examination,' by attempting to impeach a witness, get before the jury statements that are otherwise inadmissible.
    5. Witnesses <&wkey;388(2) — Contradictory •Statements — Predicate.
    Where no predicate was laid to contradict a witness with reference to a conversation, objections to the impeaching evidence should be sustained. ;
    •6. Criminal Law <&wkey;761(17) — Instructions Assuming Facts.
    Where defendant and his witness both denied that they had been living together as husband and wife, and the matter there ended, an instruction that the jury might consider such fact for the purpose of attacking credibility of the testimony of witness was erroneous,' as assuming that they had been living together.
    7. Criminal Law <&wkey;338(6) — Evidence — Admissibility.
    Evidence that the sheriff and constable brutally beat defendant’s cook in an endeavor to make her testify against defendant, and that she was placed in jail without process, is admissible to show how the witness was treated and the attempt to force her to make statements which she said were untrue.
    8. Criminal Law <&wkey;338(6) — Evidence—Admissibility.
    Such evidence is admissible to show the condition and influences brought to bear upon witnesses.
    9. Criminal Law &wkey;>338(6) — Evidence—Admissibility.
    Such evidence is admissible to show the animus and interest of the sheriff and other officers.
    10. Witnesses <&wkey;311 — Credibility.
    Where it was the state’s theory that defendant was instrumental in inducing two ne-groes to kill deceased, evidence that a negro, who admitted that he killed deceased, and that another negro, who he said was with him, were whipped by the sheriff before they implicated defendant, and that they implicated defendant after his name was suggested, is admissible.
    11. Criminal Law <&wkey;358 — Evidence — Alibi.
    Where defendant claimed that he was some miles from the place of the killing at such a time that it would have been impossible for him to have fired the fatal shot, testimony by one who saw defendant as to the time it would have taken to have ridden from the place of the killing to the point where defendant was seen is admissible.
    12. Witnesses ©=404 — Contradictory Evidence — Alibi.
    Where defendant relied on alibi and offered evidence that he was at a particular point at such time that he could not have been at the place of the killing when it occurred, and the state offered testimony to the effect that sufficient time had elapsed for defendant to have ridden from the place of the killing to the point where he was seen, contradictory evidence is admissible.
    13. Homicide <&wkey;305 — Trial — Instructions.
    Where the state’s theory was that defendant and one who was with him each shot deceased, a charge on the law of principals that, if defendant was 'present and urged his associate to kill deceased, he was guilty held improper.
    Appeal from District Court, Falls County; W. A. Patrick, Judge.
    Frank Finks was convicted of murder, and lie appeals.
    Reversed and remanded.
    Nat Llewellyn, of Marlin, and W. W. Hair, of Temple, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was allotted 99 years’ confinement in the penitentiary under a conviction for murder.

He filed an application to change the venue, based upon both grounds of the statute. These were overruled, and a venire of 300 men exhausted on account of developments in the investigation of the jurors on their voir dire and other reasons incident to their examination. At this point the motion to change the venue was renewed, setting up. the former grounds, as well as conditions developed by reason of the examination of • the jurors. The facts, without going into detail, show that there was a prejudgment of the case by practically 95 per cent, of the jurors of the county, and also a strong combination composed of quite a number of influential gentlemen, who did a great deal of talking about the case, going so far as to threaten persons who had signed appellant’s bond, or purposed doing so, when he was granted bail. These threats were political ruin and injury to their standing in the minds of the people. Among other things, quite a number of these gentlemen waited upon Hon. Tom Connally, who had been elected to Congress, and who had signed the bond, and finally induced him to take his name from appellant’s bond. The sheriff and his posse were very active in the prosecution of appellant, as will be more plainly shown by other references in this opinion. Among other things, they whipped witnesses who they placed in jail when their statements did not accord with ideas entertained by the sheriff and those who were operating with him. These whippings were very cruel and without authority of law, and were made to extort statements from the witnesses. Some of these witnesses were placed in jail without warrant or process, and kept incarcerated for varied lengths of time. If the facts upon another trial with reference to the change of venue, if applied for, are as developed in this record, the court will grant such change.

A bill of exceptions recites that Goodrich, brother-in-law of appellant, testified in his behalf. His testimony related to facts at the place of the homicide. Upon cross-examination the state developed the fact that Goodrich had visited his brother-in-law in jail two or three times. The first visit seems to have occurred about the 28th of July, the homicide having occurred on the 26th. In this connection it is shown that about ten days after the homicide Jordan Israel, a negro, was placed in jail, and it is further shown that he had at his home the watch belonging to deceased. He made conflicting statements as to how he came in possession of the watch, but testified on the trial that he received it from the defendant on the morning of the 27th. His first statement was that he received it from a negro named Tolliver, and in another statement that he received it from the confessed accomplice, Frank Williams, and upon another occasion that he received it from the defendant, and on the trial that he received it from defendant. Appellant did not elicit any testimony from Goodrich with reference to these matters. They were elicited on cross-examination by the state. After eliciting the fact from Goodrich that he visited appellant in jail, state’s counsel asked this question:

“Did you not some weeks after the arrest of Mr. Pinks, at one time out in the hall down by the sheriff’s office, and another time near the door and the stairway, and another time under those little cedar trees in front of the courthouse, each time state to Mr. Plott if he would go down to Jordan Israel’s house he would get that watch?”

Mr. Plott was the sheriff of the county. Quite a number of objections were urged. The state was also permitted to show ■ by another witness, Cooley, that about ten days after the killing of deceased Goodrich stated to him that if he, Cooley, would get Mr. Plott to go down to Jordan Israel’s house they would find deceased’s watch. The state was also permitted to prove by Hemphill that the witness Goodrich, in the Elks’ hall in Marlin, told him he had been to see Mr. Plott» the sheriff, and he had told Plott that if he would go to Jordan Israel’s house he would find the deceased’s watch. All these conversations were denied by Goodrich. Subsequently Plott, Cooley, and Hemphill were permitted, to testify to these conversations. In a sense the state made Goodrich its own witness in reference to those matters; the defendant having brought out nothing with reference to those conversations. The rule seems to be well settled, under such circumstances, that, having failed to elicit the testimony, the state would be bound by his answers, and would not be permitted to get before the jury these statements by impeachment. The state could not so prove as original testimony. Drake v. State, 29 Tex. App. 205, 15 S. W. 725. See, also, Branch’s Crim. Law, §§ 867, 868. These were conversations between third parties, and in no way binding on defendant. Nor could the state introduce indirectly such statements of defendant if he made such to Goodrich while confined in jail. These statements were denied by Goodrich, and the matter should have ended there. It is also the rule that the state cannot, on cross-examination, by attempting to impeach a witness, get before the jury statements that are otherwise inadmissible. In addition to the authorities already cited see Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 718; Hall v. State, 70 Tex. Cr. R. 590, 158 S. W. 272; Casey v. State, 49 Tex. Cr. R. 174, 90 S. W. 1018; Branch’s Crim." Law, § 866; Branch’s Ann. P. C., vol. 1, § 10, p. 65, and cases there cited; Skeen v. State, 51 Tex. Cr. R. 89, 100 S. W. 770; Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761.

The court permitted Plott, the sheriff, and others to testify to conversations occurring between Plott and Maggie Heron. • The bill recites a predicate was not laid to contradict her with reference to this conversation. Without a predicate the objections should have been sustained. There are bills of exception in the record to the manner of cross-examining the witness Heron, as well as to the charge given by the court in that connection. The state was permitted to ask her as well as the defendant, as to a conversation that occurred over the phone between herself and appellant while she was at Taylor. This negro woman had been cooking for appellant for about three years, but had gone on a visit to Taylor. This conversation was had with reference to when she would return to work for him. Annong other things, the state asked her if she and appellant had not been acting toward' each other in the relation of husband and wife. This was denied by both witnesses, and there the matter ended. This should not have been permitted, but, in any event, when the court gave the charge to the jury, he instructed them that they could consider it for the purpose of attacking the credibility of the witness Heron. Exception was properly reserved to this chai'ge, which should have been sustained, and the charge not given. There was no testimony admitted in reference to this matter. The question was asked and denial made. The court was not authorized to assume there was such testimony in the face of its emphatic denial.

While Maggie Heron was testifying appellant sought to elicit from her that a very severe whipping was given her by O. H. Plott, the sheriff, and several other officers ; that this occurred in the early morning about 2 o’clock, and that the whipping continued until the time the meat wagons began to move from the markets to deliver meat to customers. It ceased because the officers were afraid her screams would attract attention. She was very severely whipped. She was defendant’s witness, and placed in jail without process. This was intro-ducible to show the condition of things and how the witness was treated, and how they were using force to make her make statements which she said were not true. It was also admissible to show the condition and environments and influences brought to bear upon the witnesses by the sheriff and those operating under and with him to affect the witnesses with reference to their testimony and to show how the witnesses were treated to make them testify, or seek to make them testify, to things that were not true. It was also admissible to show the animus and feelings and interest of Plott and other officers. She was one of the most important witnesses on appellant’s alibi defense. She was taken from jail into the courthouse to the county attorney’s office, stripped, and whipped for two or three hours, and from which whipping. she was a long time recovering. This whipping was inflicted by what the witnesses term the “red heifer,” a piece of leather something like 2 feet long and 2 inches wide, and was administered on her naked skin; or as she expressed it, “whipped her on her bare hide,” being held by two of the men and whipped by a third. The sheriff was standing by, directing the whipping and insisting upon her making statements incriminating the defendant, which she declined. They prepared to give her a second whipping, but decided, not to do so, when she informed them that another such whipping would kill her. The bill further recites that it was the theory of the defendant that there was a conspiracy between Plott, the sheriff, and other officers to secure the conviction of appellant, and the whipping of these witnesses was to compel them to testify against him as the officers desired.

Frank Williams, the accomplice, testified he was whipped three or four times, and it was shown on the trial he did not implicate the defendant until after one or more of these whippings, and after it was also suggested by them to him that the defendant may have been instrumental in this murder. They also engaged in whipping another negro named Levi Jordan, who at one time the accomplice Williams said assisted him in killing deceased. The theory of defendant was that Jordan Israel and Frank Williams were testifying against him falsely through fear of Plott and the other officers, who had administered the whippings. It is also shown that the accomplice Williams at one time stated he would put anybody into the killing to stop being whipped. Mr. Plott, the sheriff, was a material witness for the state, as was Wrenn. It may also be stated that Frank Williams, the accomplice, said he shot deceased, and that Levi Jordan was with him at the time, and also shot deceased; that after the whipping he implicated the defendant, following a suggestion from some of the bystanders, perhaps the sheriff, that if they did the killing there was a white man, or white men, behind, the move; that the negroes would not have done it of their own volition.

Another bill recites that defendant undertook to prove by Constable Wrenn the character of punishment given by himself and Sheriff Plott to Levi Jordan. The bill also shows that appellant and the accomplice Williams were brodght face to face in jail after the murder, and Williams stated that defendant was not connected with the murder. 1⅜ stated that he and the negro Levi Jordan did the killing of deceased St. Clair, and that Jordan got deceased’s watch, and they divided the money, he (Williams) taking $35 and Jordan $30 and the watch. It is also shown that Plott and other officers brought before Frank Williams the negro Levi Jordan, in the Marlin jail, and in the presence of the witness Reed’; that Plott there said:

“Some white man got you all into this thing.. You had better come clean and'tell the truth,, and some white man was responsible for it; that they were not responsible.”

Reed also said when they began to strip the negro he left as he did not care to see the whipping. The defendant also offered to prove by Constable Wrenn what was then done to the negro Levi Jordan by himself and Plott, in administering this whipping. The' court refused to admit this testimony. Wrenn would have stated, had he been permitted, as follows:

“Myself and C. H. Plott whipped the negro with a leather strap. We didn’t whip him steadily, but would give him a few licks and talk to him, and then hit him some more, and after we finished whipping him we put him in a bath tub nearly full of water, and would stick his head under the water every now and then. We whipped him again the next day.”

This record is full of testimony with reference to these various whippings and the severe manner in which they were administered to these negroes. These witnesses, under these thrashings and beatings, changed their statements time and again, until finally they connected appellant with the homicide, and on the trial so testified. This testimony was material and important, bearing upon the whole conduct of the officers and the manner of getting testimony, and directly upon the witnesses themselves who testified after being so whipped and beaten. They failed, however, with all their whipping, to induce Maggie Heron to change her testimony. All the details of the whippings and cruelty imposed upon these negroes are not here stated. These whippings were all admissible.

There is another bill of exceptions taken to the refusal of the court to permit Burton Ross to testify, in reference to the alibi, that it ‘would take 2 to 2½ hours to ride from the scene of the homicide to where he was at work in a field, something like four miles distant from the scene of the homicide, on the morning of the killing. Appellant’s evidence was introduced to show his absence from the scene of the killing. It was testified that he left home between 7 and 8 o’clock in company with Gene Marlin; that he went with Marlin to assist him in hunting cattle for Mr. Rush; that they went to the Brazos river, and through pastures and fields down this river until they reached, at about 10:30 a. m., what is called the Black-mon pasture, where Ross was at work; that when Marlin and appellant rode to where Ross was there was present an old gentleman named Pevy and about 25 or more negroes. After talking with Boss a while' appellant and Marlin went across the Brazos river, and from there returned, arriving at home about 12 o’clock. Appellant proposed to prove by Ross it would take these parties under the circumstances about 2 to 2½ hours to make that distance on horseback. The killing occurred about 9:45 to 10 a. m. This was clearly admissible testimony, and in this connection also it was admissible in contradiction of the state’s testimony introduced through Pevy, who swore he rode it in 35 or 40 minutes, and went over the route with two other gentlemen and returned in something like 2 hours. Ross’ testimony from that viewpoint would be clearly admissible, the state having so fixed the time by Pevy that appellant might have done the shooting and reached the point where Ross was at work, by 10:30. It is the universal rule that where one side places a fact before the jury, the other side has the right to contradict it by any legitimate testimony. Ross’ testimony was admissible from either standpoint. It sustained his alibi, and also directly controverted the statement of Pevy.

There are other bills of exception with regard to rulings of the court admitting and rejecting testimony, but we deem it hardly necessary to go into further detail of these matters. What has been said will give a general idea how this case should be tried with reference to the matters mentioned. This record contains atíount 70 bills of exception, fully covering these matters referred to from almost every standpoint.

The charge with reference to principals is attacked, and we believe successfully. Frank Williams testified that he and defendant shot and killed deceased. After all of this testimony was in, pro and con, the impeachment and contradictions, the state relied upon the theory that defendant and Williams did the killing, that Williams shot him in his auto, and that as he was getting out of the car defendant shot him. This was the state’s case in brief. Defendant’^ theory was alibi.

In this .connection the court charged the jury, on the law of principals, that if they should find, etc., that on or about the time alleged in the indictment that Frank Williams shot and killed deceased, and they should further find that the defendant was present, ptc., knowing the unlawful intent of Williams, aided him or encouraged him by words or gestures in the commission of an unlawful act, in that event defendant would be a principal offender, and could be prosecuted as such, and if the jury should so find from the evidence, etc., they should assess his punishment, etc. The court had charged the jury that if they should find from the evidence that defendant shot and killed deceased with a gun, they should convict him. That presented the state’s theory, and was based on state’s facts. Appellant urged that the charge criticized was error. There was no testimony that appellant was a principal in the sense in which the criticized charge was given. The only theory of his being a principal was his presence, and firing a shot. It is the rule of law that the charge should conform to the facts, and that it is error to submit any theory of the case not made by the facts which is adverse to the accused. The state’s theory is that appellant and Williams each fired a shot. The defendant denied any connection with it, and proved an alibi. So there is no room from any view of this case for the charge of which complaint is made. Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 148; Conn v. State, 11 Tex. App. 390; Stewart v. State, 15 Tex. App. 598; Lynch v. State, 24 Tex. App. 350, 6 S. W. 190, 5 Am. St. Rep. 888; Moore v. State, 33 S. W. 980; Burgess v. State, 33 Tex. Cr. R. 9, 24 S. W. 286.

There are many matters in the ease. The bills of exception are numerous and elaborate. The record covers something like 850 pages of typewritten matter. Wte think, however, we have said enough with reference to the questions to let the trial court understand the theories upon which this case should be tried.

The judgment is reversed and the cause remanded.
      <g=^For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=3Por other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BRADY, Special Judge.

license: Public Domain

text:
    CARRELL v. STATE.
    (No. 5145.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On Rehearing, Feb. 12, 1919.)
    1. Schools and School Districts <&wkey;92(l)— Transfer Funds — Withdrawal—Authority of Superintendent of Schools.
    A county superintendent of schools is authorized,'if not required, by law to effect transfer of fund arising from transfer of school children from common schools to independent school district, and can draw checks and orders for purpose of doing so.

      2. Forgery <&wkey;12(4) — Natum os' Instrument —Order roe Payment of Money.
    An order to a bank, “Please pay to T. O. Perry, or bearer, §900.00 Nine Hundred and no/100 Dollars out of the State & Oo. collected for school District No. -, Johnson Oo. for Trs. expenses. W. J. Carrell, County Superintendent Public Schools” — was calculated to deceive, even if not valid, and W. J. O. was guilty of forgery, where he forged name of T. C. Perry on back thereof and drew such amount from bank.
    3. Forgery <&wkey;7(3) — Money Orders — Negotiability — Indorsement.
    Even though county superintendent of public schools could not execute a negotiable order to a bank to pay certain money to T., if such order was payable to “T., or, bearer,” and T. indorsed the same, he thereby guaranteed genuineness thereof, and would be liable, although unenforceable against bank or maker, so that false in-dorsement of payee’s name would constitute forgery.
    4. Criminal Law <&wkey;593 — Continuance-Absence oe Chief Counsel.
    Where accused was represented by'two able attorneys, who represented him in trial with zeal and ability, order overruling motion for continuance on account of absence of chief counsel will not be held reversible error.
    5. Criminal Law <&wkey;369(4), 406(6) — Evidence oe Other Crimes — Defendant’s Conduct and Admission.
    It was proper to admit evidence that accused, a superintendent of schools, on being called to a bank, separated cheeks drawn on school fund, putting genuine ones in one pile and ones on which names of payees had been forged in another pile, and that the cheek, the basis of prosecution, was among the bad cheeks, and that accused stated that he did not understand why he had made such a fool of himself, and such evidence was not inadmissible as tending to show other separate and distinct transactions.
    6. Criminal Law &wkey;>400(9) — Best Evidence —Deposit Slip.
    Deposit slips which were in fact original entries of deposit in a bank were best evidence of deposit.
    7. Forgery &wkey;>37 — Evidence.
    In prosecution of superintendent of schools for forging names of payees on checks drawn by him, evidence that money drawn on had been deposited in bank was material and admissible.
    S. Criminal Law &wkey;>400(6) — Incorporation of Bank — Parol Evidence.
    Incorporation of a national bank may be shown by oral testimony, where the charter has been lost or mislaid.
    9. Criminal Law <&wkey;400(6) — Incorporation of Bank — Proof.
    Where original articles of incorporation of national bank were lost, a certified copy of amended articles was admissible in evidence, if not sufficient proof of incorporation.
    10. Criminal Law <&wkey;472 — Expert Testimony.
    It was permissible for president of bank, which was depository for years of school funds, to explain meaning of language of check drawn by county superintendent of schools, set out in indictment for forgery, superintendent being charged with having forged name of payee thereto.
    Appeal from District Court, Hill County; . Horton B. Porter, Judge.
    W. J. Carrell was convicted of forgery and he appeals.
    Affirmed.
    See, also, 204 S. W. 334.
    F. E. Johnson and S. C. Padelford, both of Cleburne, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   BRADY, Special Judge.

Appellant was charged by indictment with the offense of forgery, was convicted, and his punishment assessed at confinement in the penitentiary for three years. The indictment contained two counts, charging forgery by alteration of the instrument hereinafter set out, ¡the second count charging the passing of the alleged forged instrument.

In substance, the indictment charged that appellant, as county superintendent of public instruction for Johnson county, Tex., without lawful authority, and with intent to injure and defraud, did willfully and fraudulently alter a written instrument already in existence, and which he had theretofore made, and which before its alleged alteration was as follows:

“Cleburne, Texas, May 30, 1913. “The National Bank of Cleburne County Depository.
“Please pay to T. C. Perry, or bearer,
§900.00
Nine Hundred and no/100.dollars out of the State & Co. collected for school District No. -, Johnson Co. for Trs. expenses. “V. J. Carrell, County “Superintendent Public Schools.”

The indictment then charges that, appellant altered the said instrument by writing and indorsing the name of T. C. Perry across the back of said instrument, so as to make the same appear as the indorsement of said T. C. Perry,' and in such a manner as that said false indorsement so made would have created, if the same had been true and legally made, a pecuniary obligation of T. C. Perry.

By innuendo and explanatory statements, it was alleged in the indictment that the bank upon which said check was drawn was a national bank, and was the legal depository of the public school funds of Johnson county. Other explanatory matters were alleged, not necessary to here set out, including the averment that part of the language and abbreviations in the instrument meant that T. O. Perry was entitled to $900 out of the school fund of Johnson county for the year 1913, and that said sum was to be paid to T. C. Perry, payee in said check, out of the fund for transfers, such transfer fund arising from the transfer of school children from the common schools to an independent school district of said county, or to some other district outside of that county. It was further alleged in the indictment that appellant intended by said instrument, and the language and figures therein used, that same should be understood and accepted as a check on, and as authority to, said depository to pay out of said school funds the said transfer, fund of $900. It was also averred in the indictment that appellant intended to sign said instrument in his official capacity of county superintendent of public instruction by the use of the language “County Superintendent of Public Schools.”

The second count of the indictment is the same as the first, except that appellant was charged with fraudulently passing as true the' alleged forged instrument to the National Bank of Cleburne.

This ease was before this court on a former appeal, being cause No. 4975, and the case was affirmed in an opinion delivered by Presiding Judge Davidson. It having been thereafter discovered, however, that appellant had not been sentenced, and that therefore this court had no jurisdiction to entertain his said appeal, the same was dismissed (204 S. W. 334). The case is now here upon a second appeal upon the same record, and with substantially the same grounds of error assigned.

Appellant’s counsel have attacked the indictment from almost every conceivable standpoint, and have presented their objections in multifarious ways. The same questions in effect were presented by the objections to the validity of the indictment in another case, wherein appellant appealed to this court, viz. Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217. The indictment in that case was in all substantial respects similar to the indictment in the instant case, and the validity of such indictment was upheld by this court, except as to the failure of the state to properly innuendo and explain the phrase, “County Superintendent of Public Schools.” This vice in the indictment has been cured in the present case, and therefore we think the questions presented are to be controlled by the decision in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217; and We might well rest the décision, as to the validity of the indictment, upon the opinion there rendered by Presiding Judge Prendergast. However, counsel for appellant have presented anew these questions in elaborate written and oral argument with such earnestness and vigor that we have been impelled to again refer to the authorities and the objections urged against the indictment.

We think that the various contentions and argument of counsel urged against the validity of the indictment may be reduced to these propositions: (1) That the instrument set out in the indictment was illegal and void, and could not be made the subject of forgery, fceoause the transfer fund against which said check purported to be drawn was a trust fund, and that the county superintendent was without lawful authority to draw the check against said fund, and the bank had m> authority to pay the same; (2) that' the said instrument was illegal and void for the further reason that the payee named therein was an individual, who could not lawfully be made payee of such an instrument, and who was without legal authority to cash said check or receive said fund; (3) that the instrument was nonnegotiable, and that the indorsement by appellant of the payee’s name on the back of said check was wholly without legal effect, and did not and could not create any pecuniary obligation, or affect or transfer property in any manner whatsoever; (4) that for these reasons the instrument was a nullity, including the in-dorsement, and could not be made the subject of forgery by alteration, or of passing a forged instrument.

In the Carrell Case, 79 Tex. Cr. R. supra, Presiding Judga Prendergast set out the substance of the applicable provisions of our Penal Code on the subject of forgery, with the exception of the statute on passing forged instruments; and also tersely stated the substance of the pertinent provisions of the Revised Statutes relating to the powers and duties of the county superintendent, especially in reference to the transfer funds in the school fund. We deem it unnecessary to again set out these provisions of law. Neither' do we feel called upon to again state the reasons which led to the conclusion there clearly decided, that the county superintendent was authorized, if not required, by law to effect the transfer of the fund described in the indictment. To this conclusion we adhere. It follows that the bank, the depository of the school fund, was authorized and required to cash and pay a proper check or order drawn by the county superintendent for the withdrawal of the said transfer fund to the district entitled to same, or to the proper officer or custodian of such fund; but appellant further raises the point that the payee in the instrument, T. O. Perry, was not a legal payee, because he had no title or right to said fund, nor authority to cash said check or receive the money. It may well be doubted whether the county superintendent had any lawful authority to draw said check in favor of the said payee, unless lie were the treasurer of the independent district, or the proper custodian of the trust fund after its withdrawal and) transfer from, the 'county depository, the payor bank. Conceding this proposition to be correct, however, We do not think it follows that the instrument would be null and void or incapable of being made the subject of forgery under our statutes.

It is a proposition abundantly supported by the authorities in this and other states, as well as by text-writers of eminence, that it is not necessary that a written instrument, made the basis of a forgery indictment should import an actual legal efficacy. The writing is not required to be such as that, if genuine, it would be a binding obligation. It is sufficient that it is calculated to deceive and is intended to be used to defraud. If the instrument purports to be good, although it might be shown by extraneous facts to be invalid, it will suffice as a predicate for forgery if calculated to deceive or intended for purposes of fraud. A valuable collation of the authorities on this point is to be found in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501, in the opinion of Judge Prendergast; also see the dissenting opinion of Judge Davidson in CafCey v. State, 36 Tex. Cr. R. 198, 36 S. W. 82, 61 Am. St. Rep. 841. This rule was applied in the Dreeben Case by this court, and we refer to the authorities and discussion in the opinion in that case as express-, ing our views and as applicable to the instant case.

In the present instrument the payee was simply described as T. C. Perry. Por aught that appears on the face of the instrument, he might have been the treasurer of the independent district, entitled to the transfer fund described therein, or the proper person to withdraw and hold the custqdy of said fund. We think it is clear that the instrument set out in the indictment in this case Imported at least an apparent legal efficacy and purported to be genuine. It was calculated to deceive, was intended to be and was used to defraud, and purported to affect property, viz. the transfer fund belonging to a school district. Therefore w:e adhere to the holding in Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217, that the instrument in question is clearly the subject of forgery.

If the instrument set out in the indictment were conceded to be invalid, we still think that by reason of the alteration of same, by the false and fraudulent in-dorsement of the payee’s name thereon, such act and fact of indorsement, under the circumstances, would constitute forgery. We are not inclined to agree with counsel for appellant that the said instrument is nonnegotiable. It may be that in a strict commercial sense this instrument would not be regarded as commercial paper, with all the usual features and consequences of negotiability. It may be conceded that such instruments could not be indorsed by the payee and transfer any greater title than that held by the indorser; and also that the doctrine of innocent purchaser would not obtain as to such an instrument; Yet we entertain no doubt that the instrument was at least quasi negotiable and was such that the payee, T. 0. Perry, by his indorsement, if genuine, would have created and incurred a pecuniary obligation and liability to his indorsee and transferee.

It was negotiable in form, and apparently authorized an indorsement by the payee, which would transfer the title to the instrument, and to the fund against which it was drawfa. Perhaps because of said payee’s want of authority to legally become the payee of such an instrument, or to withdraw or receive the trust fund, a person receiving said instrument from him, by indorsment or transfer, would not have been able to maintain an action either against the bank or the maker of the check, the county superintendent. Be that as it may, we think there can be no doubt that in such a case the indorsee and transferee could have maintained an action against Perry based on his indorsement and transfer of the check. By his in-dorsement he, in legal effect, would have guaranteed the genuineness and validity of the instrument, and would have become pe-cuniarily liable to his indorsee or transferee receiving same for a valuable consideration. Therefore it would be idle to argue that, if the indorsement of said instrument had been in fact made by T. C. Perry, it would not have created a pecuniary obligation on his part, as alleged in this indictment. We again refer to the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501, upon the question of. negotiability of the instrument under discussion, and of the legal effect of the fraudulent indorsement thereof by appellant; and also to Carrell v. State, 79 Tex. Cr. R 198, 184 S. W. 217.

We have examined the authorities cited by appellant, under his several propositions attacking the indictment, and we are unable to perceive that any of them are applicable to this indictment, under our forgery statutes. We will mention only two of them. Appellant strongly relies upon the case of Pox v. Shipman, 19 Mich. 219. The instrument involved in that case was a school district warrant drawn by the director of a school district on the district treasury, and payable to the assessor, but not to bearer or order. It was indorsed by the assessor to bearer. The holder brought an action of assumpsit, and the sole holding in the case was that the warrant was not negotiable, and that the district treasurer was under no obligation to pay the warrant to any person other than the assessor named therein. The instrument was not even negotiable in form, and we cannot perceive the force or application of the case to the questions here.

Another case strongly urged in argument by appellant’s counsel is that of School District v. Mallory, 23 Mich. 111. That case involved also a school district warrant, or order, payable apparently to a firm of individuals or bearer, and was drawn by the director on the district treasurer. It was held that the order was void on its face because the director had no authority to draw such an order on1 the treasurer payable to any one but the district assessor, who was the disbursing officer of the district; that debts or claims of this class were authorized by law to be paid only by the assessor, when properly drawn and countersigned.

It will be observed that the warrant in this case was on its very face shown to be drawn in favor of a firm of individuals, who, of course, could not be the district assessor, and therefore was in the very teeth of the school law of Michigan, which provided that such warrants or orders could only be drawn in favor of the assessor. It is also to be remembered that this case apparently holds that claims or debts of the class described on the face of said warrant or order could only be paid by the assessor, who was the lawful disbursing officer of the district.

We think, outside of the fact that neither of the two eases just referred to were forgery cases, but were civil actions, the above considerations served to distinguish them from the present case. Besides, it is not pointed out that the statutes of Michigan are the same as those in Texas on the subject of forgery, and it is unsafe to attempt ’to apply principles or doctrines announced in other jurisdictions where the statute law applicable is not clearly the same in substance.

For the reasons above given, and in the former cases cited, we are compelled to overrule all of the assignments and bills of exception alleging the invalidity of the indictment, and we hold the indictment good.

Appellant’s bill of exception No. 1 complains of the trial court’s action in overruling appellant's; motion for continuance based on the absence of appellant’s leading counsel, Hon. D. W. Odell. We have examined this bill, and are of the opinion that no adequate reason was assigned in the motion or by the facts recited in the bill for the absence of leading counsel. Fhrthermore, the bill shows that appellant was represented by two able attorneys, and the record bears intrinsic evidence of the zeal and abijity with which appellant was represented in the trial of the cause by the associate counsel. Under the uniform1 rule of this court this bill shows no injury to appellant and fails to present any reversible error. On this point it will be sufficient to cite the following cases: Johnson v. State, 41 Tex. Cr. R. 10, 51 S. W. 931, 54 S. W. 598; Monroe v. State, 56 Tex. Cr. R. 244, 119 S. W. 1146. Therefore we hold that the court properly overruled appellant’s motion for continuance, and the said bill of exception is without merit.

By bill of exception No. 2 appellant complains of the action of the trial court in permitting the state to introduce evidence of alleged extraneous crimes. This bill, in connection with the statement of facts, shows that S. B. Norwood, the president of the bank on which the alleged forged check was drawn, testified to a conversation, with appellant in the law office of Ramsey & Odell, in Cleburne, in the presence of Mr. W. M. Odell, who was attorney for the bank. The substance of the testimony was that Mr. Norwood said, in the presence of Mr. Odell, that appellant had gotten in trouble over some fictitious or forged vouchers or checks, and had thereby obtained certain funds from the state; that Mr. Odell remarked to appellant that he was very sorry to hear it; that appellant replied “Fes; that he didn’t understand why he had made such a fool of himself, or had acted such a fool” — something substantially to that effect; that Mr. Norwood handed appellant all of the vouchers that had been drawn against the school fund for the past two years, and asked him to pick out those that were good and put them in one pile, and those that were bad and put them in another, which he proceeded to do; that witness noticed the' $900 voucher, the check set out in the indictment, and that appellant put same in the pile called the “straw pile”; that witness asked appellant about this voucher, and asked him if he did not use his father-in-law’s name, and he said that he did, and witness further asked him. if he didn’t indorse it with his left hand, and he said that he did. Witness asked appellant, after he separated the good ones from the bad ones, if he knew how much it amounted to, and he said that he did not, that he had lost track of it; that the vouchers claimed as bad, or “straw,” vouchers were tabulated, and that witness handed said tabulation to appellant, and they amounted to $-; that when appellant saw the amount of the tabulation his exact expression was, “My God!” that witness asked appellant how he could write the signatures the same, and he stated that when he would use one name he would keep a copy of it in the office, and the next time he used a check like that he would refer to it and write it like he wrote it before.

By bill of exception No. 8 appellant presents similar objections to the testimony of W. M. Odell, whose testimony was along the same line as that of the witness Norwood. The substance of the objections is that by this testimony the state was attempting and was permitted to show other separate and distinct transactions than the one for which appellant was being tried, and that said testimony was not admissible for any purpose, and was highly prejudicial to appellant.

We think this testimony was admissible, as the conversation was shown to directly relate to the check in controversy, and involved appellant’s own statement with regard to the check for $900, set out to the indictment, which appellant’s own admissions showed he had classed in the “straw pile,” or list of bad checks. Both the hill and the statement of facts show that the court amply safeguarded appellant’s rights in relation to this testimony -by instructing the jury not to consider the other alleged transactions otherwise than as explanatory of the matter inquired about; that is, the particular check for $900. It is further shown by the transcript that the court specially charged the jury as follows:

“You are further instructed that you are not to consider for any purpose that part of general conversation, or conversation, or conversations, by the defendant, W. J. Carrell, and S. H. Nor-wood, or W. M. Odell, relative to any transaction or transactions other than that which bears directly, or throws light upon, if it does, the check or voucher offered in evidence herein, being Exhibit No. 2.”

We believe the jury could not have been misled by the charge, or by the verbal instructions given at the time this testimony was offered and admitted, and that the rights of appellant were fully safeguarded and protected by the court’s instructions, limiting the scope and effect of this testimony to the issue before the jury. Being of the opinion that these two bills of exceptions are without merit, we overrule the assignments.

By bill of exception No. 3 appellant complains of the action of the trial court in admitting in evidence deposit slips Nos. 3, 4, .and 5, and in permitting the witness Nor-wood to state what these deposit slips were. This testimony was objected to because the deposit slips were not the best evidence, and because the statement of witness in regard thereto would be an opinion and the conclusion of the witness, and that said testimony was wholly inadmissible and immaterial. From the bill and statement of facts it appears that these deposit slips were in fact the original entries of deposit made by appellant in the bank and were the best evidence of the deposits. The testimony related to one of the material allegations in the indictment, the receipt by the bank from the state of the Johnson county available school fund, out of which the transfer fund alleged in the indictment arose. The testimony was admissible on this issue, and the bill of exceptions and statement of facts show that the testimony of the witness Norwood in relation thereto was not a conclusion. The bill wholly fails to show any reversible error, and the assignment is therefore overruled.

By bill of exception No. 4 appellant assigns as error the admission by the trial court of the amended articles of association of the National Bank of Cleburne, and the extension of the charter of said bank issued by the Comptroller of the Currency, because these instruments fail to show any authority or charter of said banking institution as a national bank, and that said testimony was secondary and not the best evidence. We have carefully examined this bill in connection with the statement of facts, and-find that the state satisfactorily accounted for its failure to introduce the original articles of incorporation of the bank. The certified copy of the amended articles and the extension of charter having for their purpose, and reciting on their face, the extension of the corporate life of the institution as a national bank, had a direct bearing upon a material issue in the case and a necessary allegation in the indictment, and we think were admissible if not sufficient proof of the incorporation of the bank. Furthermore, the fact of incorporation was shown by oral testimony upon the predicate that the original charter had been lost or mislaid. It is unnecessary to cite authorities that a fact of this sort maybe shown by oral testimony. Indeed, many authorities hold that such a fact may be established by reputation, where better evidence is not available. This bill shows no reversible error and the assignment is overruled.

In bills of exception Nos. 5, 6, and 7 appellant presents the alleged errors of the trial court in permitting S. B. Norwood to testify as to the meaning of certain words and phrases and abbreviations contained in the instrument set out in the indictment. This testimony all related to matters which were made the subject of innuendo and explanatory statement in the averments of the indictment, and was upon material, if not necessary, issues. The witness spoke from.' a long and familiar course of dealing with the public schoojUfund, as president of the bank which was me depository of such funds, and from a long and intimate course. of dealing with appellant in his official capacity as superintendent of public instruction. We are of the opinion that it was proper, if not necessary, to prove these facts, and it was permissible for the witness to explain the meaning of the language as set out in the indictment.

There are other errors assigned, but we deem it unnecessary to discuss them. They have all been examined, and we are of the opinion that none of them present reversible error, and they are therefore all overruled.

'Since we are of the opinion that it has not been shown that reversible error was committed on the trial, the judgment will be affirmed.

MORROW, J., not sitting because disqualified.

On Rehearing.

. ROBERTSON, Special Judge- In both oral and written arguments counsel for appellant has attacked the original opinion in this case mainly upon the ground that the instrument declared upon and set out in the indictment is not such an instrument as can be made the basis of a charge of forgery under our statute, and that said instrument is void upon its face, is not negotiable under the law merchant, and is not a pecuniary obligation within the meaning of our 'statute on forgery. All of these questions were fully discussed in the opinion of the court in the case of Carrell v. State, 79 Tex. Cr. R. 198, 184 S. W. 217, which was' another case against appellant on a charge of forgery of an instrument which was substantially to the same effect as the one involved in the present case. In the case just referred to this court held the indictment defective on the ground that it did not contain certain innuendo aver-ments necessary to its validity, but held that the indictment was otherwise sufficient.

In the present case the indictment contains the innuendo averments necessary to meet the objections pointed out in the opinion in ,the former case. Both in the former case and in this one appellant was charged, not with having forged the instrument itself, but with having forged the indorsement on the back thereof. The indictment in both cases based the charge of forgery upon the unlawful and fraudulent making of the in-dorsement on the back of the instrument.

In Carrell v. State, supra, it was held, in effect, that the instrument set out in the indictment in that case was not void so as to prevent it from being the subject of forgery, and that the indorsement on the back thereof, if genuine, would have affected the indor-see pecuniarily, and hav^ created a legal pecuniary obligation on ¾⅛ part. On the authority of that case, the soundness of which we do not question, the contentions of the appellant must be overruled.

In neither the oral argument before the court on rehearing, nor in the written argument filed herein, does the appellant mention or discuss the case of Oarrell v. State, supra, but appears to have wholly ignored the decision in that case, although directly in point; and for us to now sustain the contentions of appellant would require the overruling of that case, which we are unwilling to do, believing that the legal principles involved were correctly decided-

In the original opinion In this case the authorities cited by appellant were reviewed, discussed, and distinguished, and, besides,, those authorities were decisions of the courts of other states, and are not controlling over the decisions of the courts of this state.

We do not doubt that the instrument declared upon, and set out in the indictment, is a pecuniary obligation — one having money for its object — within the meaning of our statute on forgery. Neither do we doubt, that the false and fraudulent making of the-indorsement on the back thereof would, if genuine, have created a pecuniary obligation, and may properly be made the basis of forgery under our statute.

These questions were fully discussed in the case of Oarrell v. State, supra, and in the original opinion in this case, and were, we believe, correctly decided, which necessitates the overruling of appellant’s motion for rehearing, which is accordingly so done.
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author: KEY, C. J.

text:
    JOHNSON v. CLARK.
    (No. 6003.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 2, 1919.
    Rehearing Denied Feb. 19, 1919.)
    Trespass to Try Title <S==>41(3) — Sufficiency of Evidence.
    In trespass to try title, where plaintiff claimed under a deed conveying lot 17 in block 5, according to the map on file, without otherwise designating boundaries, plaintiff was entitled to recover, where the only official map in evidence-showed land to be a part of lot 17; defendant having produced no testimony showing better title in herself or any one else.
    Appeal from District Court, Tom Green County; C. E. Dubois, Judge.
    Trespass to try title by David L. Clark against Mrs. Bertha Johnson. Judgment for plaintiff, and defendant appeals.
    Affirmed..
    J. T. Thomson, of San Angelo, for apel-lant.
    * Anderson & Upton, of San Angelo, for appellee.
   KEY, C. J.

This is an action of trespass to try title; the subject-matter being a parcel of land in the shape of the letter V, in the city of San Angelo, and designated by the defendant “fractional lot 1®,” but claimed by plaintiff as a portion of lot 17, in block 5. There was a trial without a jury, which resulted in a judgment for the plaintiff, and the defendant has appealed.

The trial judge filed the following findings of fact:

“Findings of Fact.
“(1) It was agreed by both plaintiff and defendant, that on the 6th day of September, 1S98, tliat all of the land described in plaintiff’s petition belonged to Elise Koenigheim.
“(2) That on the 6th day of September, 1898, Elsie Koenigheim made, executed, acknowledged, and delivered to Henry Basey, Smith Ellis, Jeff Lane, Jerome Elliott, O. H. Johnson, W. H. Myers, and Wm. Bowman, trustees for the Colored Benevolent Association, a deed of conveyance conveying lot No. 17, in block No. 5, in the main part of San Angelo, and at said time the entire tract of land as described in plaintiff’s petition, same fronting S0.6 feet on Beauregard avenue, was pointed out to the grantees in said deed as being lot No. 17, and the entire tract of land, as described by plaintiff, was surveyed, staked off, and delivered to the grantees in said deed, and that they, said grantees, took possession of the whole of said property at said time.
“(8) That on the 19th day of July, A. D. 1900, the trustees, as above named, made, executed, and delivered to the Colored Benevolent Association of San Angelo, Tex., a deed conveying lot No. 17, in block 5, in the main part of San Angelo, and at said time the Colored Benevolent Association took possession of all of 'the land described in plaintiff’s petition, and held the same until the 11th day of July, 1916, at which time the said Colored Benevolent Association, a private corporation, sqld and conveyed said land to the plaintiff, David L. Clark.
“(4) That the plaintiff, David L. Clark, and his grantors, have had continuous, peaceable, and adverse possession of all the property described in plaintiff’s petition since the 6th day of September, 1898, using, enjoying, and claiming the same adverse to all other persons.
“(5) That lot 17 has been recognized as including all of the land described in plaintiff’s petition, same being 80.6 feet fronting on Beauregard avenue, since the 6th day of September, 1898, as shown by map made and compiled by U. G. Taylor, city engineer, introduced in evidence in the trial of this case, and was so recognized by Elise Koenigheim at the time she sold same.
“(6) I further find that the defendant, Bertha Johnson, did not have any claim, right, title, or interest in and to any of the land described in plaintiff’s petition; that she did not know the shape or location of the land in controversy until the 12th day of July, 1916.”

Opinion.

The first assignment charges that the trial court erred, in rendering judgment for the plaintiff for so much of the land described in his petition as is shown on the map of the city of San Angelo to be lot No. 16 in block 5.

The second assignment complains of the second finding of fact, to the effect that the entire tract of land described by the plaintiff was surveyed, staked off, and delivered to the grantees in the deed from Elise-Koenig-heim to Henry Baséy and others, for the reason that such deed only conveys lot 17, fronting 50 feet on Beauregard avenue, rather than 80.6 feet.

Those two assignments will be considered together.

The deed from Elise Koenigheim to Henry Basey and others, as trustees for the Colored Benevolent Association, described the property conveyed as “lot No. 17, in block 5, in the main part of the town of San Angelo, Tom Green county, Tex., according to the map on file in the county clerk’s office of Tom Green county, Tex., to which reference is here made.” It will be noted that the deed does not state the frontage of the lot, or otherwise attempt to designate its exact boundaries. The only official map that was introduced in evidence was one prepared by W. G. Taylor, engineer of the city of San Angelo, and according to that map the land in controversy is part of lot 17, in block No. 5. In other word§, according to that map,, at the time it was made there was no lot or fraction of lot No. 16, in block No. 5, and the land in controversy was part of lot 17. Such being the case when Elise Koenigheim conveyed to the grantors under whom the plaintiff claimed lot No. 17, in block 5, without any further particularity as to description, except the reference to the official map of the city, we hold that such conveyance included the land in Controversy, and as the defendant produced no testimony showing any better title in herself or any one else, the plaintiff was entitled to recover, and both of the assignments under consideration must be overruled.'

The ruling just made renders it unnecessary to determine whether or not the plaintiff showed title by limitation or estoppel, as contended by his counsel.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
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text:
    BAKER v. HERNDON.
    (No. 5979.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1918.
    Rehearing Denied Eeb. 19, 1919.)
    1. Carriers <§=>228(3) — Live Stock — Actions — Evidence—Admissibility.
    In an action against a carrier for damages to a shipment of cattle, evidence as to the difference in market value of the cattle in the condition in which they arrived, and in “good condition,” held admissible.
    2. Appeal and Error <®=>231(3) — Evidence-Objections in Lower Court — '“Good.”
    In an action for damages to shipment of live stock, a question as to the difference in market value of the cattle in the condition when they arrived at destination, and “in good condition,” and without injuries, not objected to because of the quoted words, though objected to as not giving correct measure of damages, did not constitute reversible error; the word “good” being a relative term meaning satisfactory in kind, quality, or degree.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Good.]

      3. Appeal and Eke os <@=»729—Assignments
    op Ekboe—Sufficiency.
    Assignments of error objecting to special issues as being on the weight of evidence, as assuming material facts, and as submitting more than one question in the same issue, were too general.
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by W!. C. Herndon against James A. Baker, receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    Snodgrass, Dibrell & Snodgrass, of Coleman, -for appellant.
    Critz & Woodward, of Coleman, for appel-lee.
   KEY, C. J.

This is a damage suit growing out of a shipment of cattle from San Antonio, Tex., to Santa Anna, Tex.; and from a judgment in favor of plaintiff, the defendant, Jas. A. Baker, receiver for the International i& Great Northern Railway Company has appealed.

The first five assignments of error complain of the action of the trial court in overruling objections to certain testimony. A sample of the testimony complained of is, as follows:

“Q. What, if anything, was the difference in the market value of the cattle described, in the condition in which they were in when they arrived at Santa Anna, and in good condition and without those injuries; if these cattle were worth $65 before leaving, and there was no market for them, what was their value, or what was the difference in the market? A. Sixty-five dollars difference.”

The testimony referred to was given by the plaintiff in his own behalf, and the objections were: First, that he was not qualified to testify as to market value; and, second, that the testimony was not admissible, because it ignored the true measure of damages, to wit, the difference in market value of the cattle in the condition in which they arrived, and the condition in which they should have arrived.

We overrule all of those assignments, and hold that the testimony was admissible. The court instructed the jury that the measure of damages was, as stated by appellant, tbe difference in the market value of the cattle in the condition in wSieh they arrived, and the condition in which they should have arrived; and the testimony complained of tended to aid the jury in applying that measure of damages.

Appellant’s contention in this court seems to he that the use of the words “in good condition” rendered the question improper. The record does not show that appellant made that specific objection 'in the court below; the objection there made, as disclosed by tbe bills of exception, being “because the question does not submit a proper measure of damages, and the answer was not the proper measure of damages.”

The policy of our law of procedure, as disclosed by legislation enacted in recent years and • by the trend of judicial utterances, is to avoid tbe reversal of cases upon questions not involving substantive law, unless it is made to appear that the identical and specific question was presented to and ruled upon by the. trial court.

The record in this case does not show that appellant objected to the questions because they included the words “in good condition,” and that, in itself, ought to be sufficient reason for declining to sustain the assignments referred to. However, the word “good” is a relative term, and has several shades of meaning, one of which is given by the Century Dictionary as, “Satisfactory in kind, quantity, quality, or degree.” At any rate, it does not signify the best, and therefore the witness could not have understood the question as describing cattle in the best condition, and may have understood it as applying to cattle that had been shipped tbe same distance, and had not been, injured by the negligence of the carrier; and if appellant desired to know whether or npt he had made allowance for such injuries as necessarily result from the proper shipment of live stock under such circumstances, he should have elicited that fact on cross-examination.

Under several assignments of error appellant complains of the court’s charge, and the refusal to give certain requested instructions, all, of which have been considered and are overruled. It does not appear, from the record that the written objections to the court’s charge were presented before the charge was read to the jury, as required by the statute, and many of the objections, like the one copied above concerning the admissibility of testimony, were too general. For instance, the objections to the first special issue submitted to the jury read as follows:

“(a) Same is upon the weight of the evidence.
“(b) Assumes material facts at issue in the case.
“(e) Submits more than one question of fact in the same issue, whereas it should submit only one question of fact.”

In the opinion of this court, these objections are too much like a general demurrer and to have been good they should have pointed out wherein and how the charge was upon the weight of evidence, assumed material facts, about which there was a conflict of testimony, and should have designated the different facts which it was claimed were improperly submitted together. However, the objections to the charge pointed out in appellant’s brief have been considered, and are not regarded as sound.

All the other questions presented in appellant’s brief have been duly considered, and are decided against him; and as no reversible error has been pointed out, the judgment is affirmed.

Affirmed.
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