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

text:
    ROSS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Intoxicating Liquors (§ 236) — Criminal Peosecution — Sufficiency of Evidence.
    Evidence, in a prosecution for the unlawful sale of intoxicating liquors, held sufficient to warrant a conviction.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    2. Criminal Law (§§, 741, 742, 1160)— Appeal— Review — Verdict—Weight of Evidence.
    In a criminal prosecution, the weight of the testimony and the credibility of the witnesses are questions exclusively for the jury, and the verdict will not be reversed on the evidence, especially where the trial judge has refused to set it aside.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1221, 1705, 1713, 1716, 1717, 1719-1721, 1727, 1728, 3084; Dec. Dig. §§ 741, 742, 1160.]
    3. Criminal Law (§ 706) — Trial—Permitting Consultation -with Witnesses.
    It was not error for the trial court, after the jury had been impaneled and the witnesses sworn and put under the rule, to permit the county attorney to confer for a minute with the only witness for the prosecution before putting him on the stand.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    4. Witnesses (§ 372) — Cross-Examination to Show Interest — Signing Bond of Accused.
    It was proper to ask on cross-examination of witnesses for the defendant whether they were on his bond in that case, and also whether they had been on his bond before, in order to show the interest of the witnesses.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§, 1192-1199; Dec. Dig. § 372.]
    5. Criminal Law (§ 673) — Instructions — Limiting Effect of Evidence — Necessity.
    Where such testimony is admitted, it is not necessary, especially in the absence of a request, to charge the jury that it can be considered by them only as affecting the credibility of the witnesses and not as a circumstance against the defendant, since the testimony could not have been considered by the jury for any other purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    6. Criminal Law (§ 1173) — Appeal—Harmless Error — Instructions.
    Under Code Cr. Proc. 1911, § 743, forbidding reversal for errors in instructions not calculated to injure the defendant, the failure of the court to limit the consideration of testimony, admitted to show the bias of witnesses for the defendant, to that purpose, where the testimony could not have been used for .any other purpose, does not require reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Frank Ross was convicted of unlawfully selling intoxicating liquor in a county in which, prohibition was in force, and he appeals.
    Affirmed.
    H. F. Weldon, of Bowie, W. S. Jameson, of Montague, and Seb F. Caldwell, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, J.

Appellant was convicted for unlawfully selling intoxicating liquors in Montague county, after prohibition was in force therein, and his penalty fixed at two years in the penitentiary.

One ground of his motion for new trial is that the verdict is insufficient in that the only testimony against him is that of J. H. W. Jones, whose testimony is insufficient in that it shows him to be wholly unreliable and unworthy of belief and that he is a biased witness with no stability or reliability ; his statement being wholly unreliable and contradictory and unworthy of credit. Said Jones, for the state, testified: That he lived 2% miles west of Bowie and knew appellant well.' That on Friday, November 15, 1912, he bought a pint whisky from appellant and paid him $1 therefor. This occurred in a little house where appellant was in a part of the Burns Hotel, in Bowie, Montague county, Tex. That he could not say for certain where appellant got the whisky from at the time, but he thinks he got it out of a box or trunk, or something. His testimony as to his purchase from appellant of this bottle of whisky at this time and place was clear, positive, and pointed. He was then subjected to quite a long and severe cross-examination. He showed that when he bought this bottle of whisky on this Friday he took it home with him that evening ; that before or about daylight the next morning (Saturday) he hauled a bale qf seed cotton from his home to the gin in Bowie, and that his object in leaving his home as early as he did was to reach the gin in advance of others so as to get his cotton ginned as early as he could; that he took this bottle of whisky with him that he had purchased from appellant the day before and in going to town with the cotton he took a drink out of the bottle of whisky; that he continued to drink out of this bottle until 3 or 4 o’clock in the evening, when, as he expressed it, he got “gloriously drunk” on that whisky in the town of Bowie; that he was prosecuted for getting drunk on this occasion and paid a fine therefor. In the course of this cross-examination and about his getting drunk on this occasion, he testified that it did not take much whisky to make him drunk; “there were two parties; that each drank a dram out of the bottle; but I don’t remember who they were. It is true that my memory is not as good as it once was; my memory is bad. As to whether it is not a fact that I cannot hardly trust my memory to these things, will say that sometimes there are things that come up — things that don’t concern me to amount to anything — that 1 won’t recollect SO minutes afterwards; it depends on what they are. Now I told you I was drunk that day; at times I didn’t know anything, but at times I did. It is true that I didn’t know what I was doing part of the time that day.” In his further cross-examination it was developed that some time along in the evening of that Saturday after he got drunk, and while he was drunk, the officers got after him and undertook to then find out from him where and from whom he had gotten the whisky which made him drunk. He tried to keep the officers from finding out these facts. Late in this Saturday evening he again went into appellant’s place and then and there got another pint of whisky from appellant; that immediately after he did this and was leaving appellant’s place the officer saw him, found this bottle of whisky on him, and the officer took it and then tasted it. The officer then accused him of buying this bottle of whisky- from appellant and asked him if he did not buy it from appellant. He denied buying it from appellant. It is manifest from the evidence that this was one of appellant’s schemes to throw the officers off and prevent them from believing or charging that he had sold this whisky to the witness, the object being to induce the witness, when the officers were pressing him, to testify that he did not buy this bottle of whisky from appellant, for either that day or the Monday following, it appears that they had him before an officer to induce him to tell whether or not he bought that bottle of whisky, and the witness, by his own statement, positively denied to them that he had bought that bottle of whisky from appellant but that appellant gave it to him or loomed it to him; and he adroitly or otherwise limited the investigation of himself at that time to that bottle of whisky, and he claims that the officer did not then ask him about the bottle of whisky that he did actually buy from appellant the day before (Friday). The evidence further develops that appellant was arrested that night (Saturday night) charged with this offense. It is further shown that the next night (Sunday night) some one sent a livery team from the town of Bowie to this witness’ home, 2Yt miles in the country, and had him that night (Sunday night) brought from his residence back to Bowie, and that he was taken to the livery stable, whence this conveyance then took him, and in effect he was turned over to the liveryman, O. B. Downs, who was one of appellant’s two witnesses. There is no intimation any one representing the state sent for him. The circumstances repel that. Downs testified that some one, he claimed not to know who it was, just before Jones was delivered to him at his livery stable, phoned him that a party was expected there and as soon as he came to telephone the fact to Mr. H. P. Weldon, one of appellant’s attorneys ; and that when Jones arrived he (Downs) did telephone his arrival to appellant’s said attorney and at once steered him to this attorney’s office and either went with him, just preceded him, or just followed him to said office. Jones testified that, when they got him in this attorney’s office that Sunday night, Mr. Weldon asked him if he bought a pint of whisky from appellant on Saturday the 16th, and wanted to know if he paid for or bought that particular pint of whisky; that he told Weldon that he did not bwy nor pay for that pint of whisky; and that Weldon thereupon made out an affidavit to that effect, which he signed and swore to before Weldon. An affidavit was then produced and the witness, after examining it, admitted that that was his signature thereto. The affidavit is, after the state and county: “Before me, the undersigned authority, on this day personally appeared J. H. W. Jones, who after being By me duly sworn on his oath deposes and says that on yesterday, the 16th day of November, 1912, Prank Ross gave to him one pint bottle of whisky, or loaned it to him, and further this deponent says that he never paid the said Prank Ross any sum of money for same, or made him any promise of such payment [and that he has never in his life bought any intoxicating liquors from the said Prank Ross].” Jones then in his further cross-examination testified : “If that (the words in the last of the preceding affidavit above in brackets) was read to me I didn’t hear it; I would have ordered that cut off right there; that last part that I never bought any whisky from him, because I know I had and I would not have signed it. I would rather had my right hand cut off than sign that. * * * I wouldn’t have signed the statement if I would have understood it, if I would have known that last part was to it.” He further shows in his testimony that he thinks he was not then drunk or under the influence of whisky; that he had drunk some that Sunday out of this last bottle that appellant had given him on Saturday. As to that last statement in the affidavit, in further cross-examination, he testified: “As to whether I will swear that Mr. Weldon didn’t read this statement over to me just like you did, will say that if he did I didn’t hear that last part. If he had read it I would not have signed it; I didn’t have to do it that way and I wouldn’t have signed it for $500. I wouldn’t say that he didn’t read it correctly, but if he did I didn’t hear it. I could not see what he had written as I couldn’t read.” The witness further shows that when he went or was taken by Mr. Downs to Mr. Weldon’s office on this occasion he didn’t know whether Weldon or Downs first mentioned about the whisky to him. “I didn’t know what they wanted when I got up there, and they had to start the conversation; one of them, I think it was Mr. Weldon, said he wanted to see me about that pint of whisky that I got from Ross. I did not tell them that X had gotten a pint of whisky on Friday and that is the reason I said that I would not have signed the statement if that other had been in there. I had no former acquaintance with Mr. Weldon, but X knew him when I saw him. I never had any business with him.”

Ed Arledge, one of appellant’s two witnesses testified that he was in appellant’s house in his room on Saturday evening November 16, 1912, when the witness Jones was there, and that he heard a conversation between Jones and appellant in which Jones got a bottle of whisky from appellant and offered to pay him for it and that appellant said, “No, Mr. Jones, I can’t sell whisky. Did I ever sell you any whisky?” and that Jones answered, “No, you never did.” This witness, on cross-examination, developed that this occurred some time between 4 and 6 o’clock on that Saturday evening, more particularly between 5 and 6 o’clock; that he went down there on a matter of business and when he got there appellant asked him to have a drink and set a bottle down on a trunk, but Arledge (the witness) then declined to drink and said he came after money. Thus showing by appellant’s own witness that appellant had and kept whisky where Jones said he got both pints from him. Jones further testified that since November 15, 1912, appellant had a talk with him regarding this case; that he just asked him one time that he wished “I would go and change some in there.”

The witness Jones testified that when he got that bottle of whisky Saturday evening from appellant there was somebody else in the room but he did not recollect who it was. He said that it seemed to him that he and appellant had some talk at that time but he could not remember for certain what was said and could not say that he then offered to pay for the bottle of whisky and that he then told appellant that he never bought any whisky from him. He said that he did not recollect a word of anything of that kind passed; that he could not remember the particulars of what was said “because I was in no shape to remember.” In other words, the testimony clearly shows, as-stated above, that he was “gloriously drunk” on this occasion and he did not know all what he said or did because of his then drunken condition.

Appellant’s witness Downs testified that he was present when the said affidavit was prepared by appellant’s attorney, Mr. Weldon, and that after Mr. Weldon wrote it out it was read over to Mr. Jones before he signed it, and that the last clause of that statement was written at Jones’ dictation and he read and signed it. He said he believed that Mr. Weldon read it to Jones twice.

It is noticeable that notwithstanding the state’s witness Jones testified in effect that he did not hear Weldon read the last part of said affidavit shown above, and that if he had so read it he would not have signed it, Mr. Weldon did not testify at all. The record shows that he was present and was one of the attorneys who represented the appellant on the trial of this case in the court below and in this court.

From this record it is clear to me that the testimony of Jones that he bought the bottle of whisky from appellant on Friday, November 15, 1912, was true, and as soon as the officers found him in his drunken condition and began to try to induce him to tell- where he got the whisky that he got drunk on, that appellant was made aware of it and immediately set to work to get witnesses to impeach him and to get the affidavit, and did get it, for the purpose of discrediting his testimony before the jury.

The weight of the testimony and the credibility of the witnesses were questions exclusively for the jury. They saw all the witnesses, heard them testify, the manner of their examination and cross-examination, and could better judge of the veracity and truthfulness of their statements than this court can possibly do from a statement of the facts. Twelve fair and impartial jurors on ,their oaths, after hearing all this testimony, by their verdict say that they believed the testimony of the state’s witness Jones, and they were amply justified in doing so. Besides this, the learned judge before whom the case was tried heard all this evidence and reached the conclusion that the jury were justified and authorized to believe the testimony of Jones and refused to set aside the verdict, thereby sustaining the sufficiency of the evidence to-justify the conviction of appellant.

Appellant, by his first bill, shows that after the announcements in the ease, and after a jury was impaneled and sworn, and defendant had pleaded not guilty, and the witnesses had been called and sworn and placed under the rule, and the court asked the-county attorney what witness he would first use, the county attorney asked permission to-talk with the said state’s witness Jones, who-was its only witness. The appellant objected to this; that the court allowed the county attorney to then have a private talk with said;witness which lasted not exceeding two minutes. The court, in qualifying the bill, stated that the county attorney stated to the court that he desired to confer with this witness, and the court told him he would give him one-minute; that the consultation between the county attorney and the witness did not last exceeding two minutes; that the county attorney had been very busy; that the court felt it was entirely proper for him to have-this conference with this witness; and that under the circumstances it was no injustice-to permit it. There was no error in this. It was entirely proper, if not his duty under-the circumstances, for the court to permit the county attorney to have this conference with the witness before he put him on the stand.

Appellant has two other bills. One of them, after the style, number of the cause, court, etc., is: “While Ed Arledge was on the witness stand, as a witness for the defendant, and after he had been examined by the defendant’s counsel, the county attorney on cross-examination asked said Arledge, after he had testified in answer to the questions of the county attorney that he was on Frank Ross’ bond in this case, whether or not he had been on Frank Ross’ bond before, and defendant’s counsel objected to said question because the same was irrelevant and immaterial and because the same was prejudicial and the proving by said witness that he had been on bonds of the defendant in other cases was a method of bringing before the jury that the defendant had other prosecutions pending against him, and because the state had no right either directly or indirectly to prove or allude to other and different prosecutions, and the court overruled said objections and permitted said witness to answer questions of the county attorney in regard to former bonds, and the said witness then, in answer to the county attorney’s question and over objection of defendant, said: T am his bondsman at the present time; I think I have been on Frank’s bond before this. I could not tell you how often I have been on Frank’s bond, but every time he ask me to go on it.’ To which action of the court and the admission of the testimony, the defendant then and there in open court duly excepted and asked that said exception be made a matter of record, and it was done accordingly. Approved with same explanation as on bill No. 3.”

The next bill (No. 3) is precisely as this, except that it is to the same questions to his said witness Downs and substantially the same answers by Downs. In approving this last bill the court did so with the explanation: “That this witness and W. E. Arledge showed considerable bias in favor of the defendant, and this testimony was admitted to show their feeling in the ease, and it nowhere appears what kind of bonds they had signed for defendant. This court does think defendant was prejudged or that the result would have been different but for this.” It is perfectly apparent to me that the word “not” was omitted in the last sentence of the judge, following the words “this court does.” With the word “not” therein, the former part of the qualification would correspond with the latter, and without the word “not” it does not do so. In all probability this was a clerical error by the clerk in making up this copy. This is rendered more certain by the fact that the clerk, in copying the indictment in the transcript, had it that the appellant was charged with the commission of the offense “on or about the 15th day of November, A. D. one thousand nine hundred and thirteen.” This mistake of “thirteen” instead of “twelve” having been called to his attention, he has furnished and there is on file in this court a properly certified copy of the indictment which shows that “thirteen” was a mistake and that “twelve” was the date instead, and the appellant’s attorney and the Assistant Attorney General, in the submission of this cause, in effect so stated and agreed before this court. But, however that may be, the evidence objected to was clearly admissible. Earle v. State, 142 S. W. 1182; Pope v. State, 143 S. W. 612; O’Neal v. State, 146 S. W. 940.

The only other assigned error by appellant is this: “The court erred in not instructing the jury that the testimony of C. B. Downs and W. E. Arledge, to the effect that they had signed other bonds for the defendant, could not be used as a circumstance against the defendant.”

There is no question, as stated above, but that it was proper cross-examination of appellant’s said two witnesses to show ,by them that they not only were on the appellant’s bond in this case but that each had signed other bonds for him, to show their interest in him and in his behalf. As stated by the judge in the qualification of the bill, both of these witnesses showed considerable bias in favor of appellant. There can be no question about this. Mr. Branch in his criminal law has so aptly stated the propositions applicable to this question that we will merely quote three of his texts on this subject:

Section 367: “Testimony does not have to be limited where it can only be used by the jury for the purpose for which it was introduced. Leeper v. State, 29 Tex. App. 69, 14 S. W. 398; Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85; Sue v. State, 52 Tex. Cr. R. 129, 105 S. W. 804; Rice v. State, 54 Tex. Cr. R. 167, 112 S. W. 299; Wright v. State, 56 Tex. Cr. R. 358, 120 S. W. 458; Wilson v. State, 60 Tex. Cr. R. 1, 129 S. W. 614; Malcek v. State, 33 Tex. Cr. R. 20, 24 S. W. 417; Brown v. State, 41 Tex. Cr. R. 233, 53 S. W. 866; Harrold v. State, 46 Tex. Cr. R. 570, 81 S. W. 728.”

Section 873: “If impeaching testimony caij only be used by the jury to impeach a witness, it is not necessary to charge on the subject at all. Brown v. State, 24 Tex. App. 170, 5 S. W. 685; Magee v. State, 43 S. W. 512; Robinson v. State, 63 S. W. 870; Newman v. State, 70 S. W. 953; Watson v. State, 52 Tex. Cr. R. 90, 105 S. W. 509; Waters v. State, 54 Tex. Cr. R. 327, 114 S. W. 628; Thompson v. State, 55 Tex. Cr. R. 120, 113 S. W. 536; Schwartz v. State, 53 Tex. Cr. R. 451, 111 S. W. 399; Poyner v. State, 40 Tex. Cr. R. 640, 51 S. W. 376; Givens v. State, 35 Tex. Cr. R. 563, 34 S. W. 626; Blanco v. State, 57 S. W. 828.”

Section 366: “If impeaching testimony could be used by tbe jury for purposes other than impeachment so as to exercise a strong, undue, or improper, influence with the jury as to the main issue, injurious and prejudicial to defendant, the charge must limit so, that no unwarranted results would issue (ensue). Wilson v. State, 37 Tex. Cr. R. 385, 39 S. W. 373; Winfrey v. State, 41 Tex. Cr. R. 542, 56 S. W. 919; Herd v. State, 43 Tex. Cr. R. 578, 67 S. W. 495; McGill v. State, 132 S. W. 943; Maples v. State, 56 Tex. Cr. R. 99, 119 S. W. 105.”

Now let us see whether the jury in this case could have used this testimony for any other purpose than to show bias and interest of these two witnesses in appellant, and whether from it they could use it to exercise a strong, undue, or improper influence as to the main issue.

The indictment charges that appellant on or about November 15, 1912, did then and there sell to J. H. W. Jones intoxicating liquors, etc. Nothing whatever is therein alleged about his selling to any one else at any time or place.

The court, in charging the jury, told them, if they believed from the evidence beyond a reasonable doubt that appellant did in Montague county, at the time alleged in the indictment, sell intoxicating liquors to said Jones, to find him guilty and assess his punishment, etc. In the next paragraph he told them, if they did not find and believe from the evidence beyond a reasonable doubt that appellant sold intoxicating liquor to said Jones at the time alleged in the indictment, to find him not guilty. Then in two other paragraphs he told them that the burden of proof was on the state; that the defendant was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt; and if they had a reasonable doubt they would acquit him. Then in another paragraph that they were the sole and exclusive judges of the facts proved, credibility of the witnesses, and the weight to be given to their testimony, but as to the law of this case they will look alone to these instructions and be governed thereby.

The jury was sworn as prescribed by the statute (article 714, O. C. P.): “You and each of you solemnly swear that in the ease of the state of Texas against Frank Ross, the defendant, you will a true verdict render, according to the law and the evidence, so help you God.”

In my opinion there is no question but that this jury could not have used said testimony for anT" other purpose than that of affecting the credibility of the appellant’s said witnesses, and that it could not be used and was not used by them to exercise a strong, undue, or improper influence as to the main issue submitted and required to be found by the charge of the court in this case. Appellant requested no charge on the subject, and under article 743, O. O. P., I believe this court is required not to reverse this judgment as there is no error appearing therein which was calculated to injure the rights of appellant.

I believe that there is no error whatever in this record and that it should be affirmed, and it is so ordered.

HARPER, J., concurs.

DAVIDSON, P. J.

(dissenting). Under my belief and view of the law I cannot concur in the opinion affirming the judgment herein. Appellant, it is true, was convicted of violating the local option law, but I am. of the opinion that he is as much entitled to a fair trial in this character of case as he would be if charged with the violation of any other law on the statute books.

The state’s witness, Jones, testified that on Friday he bought intoxicants from appellant and on Saturday drank it and got, as he said, “gloriously drunk.” For this he was arrested and caused to pay a fine. On Saturday night he went to his residence in the country. He says he got up Sunday morning sober. Sunday evening some one came to his home, whom he accompanied to town. While in town he made the following affidavit; “Before me, the undersigned authority, on this day personally appeared J. H. W. Jones, who after being by me duly sworn on his oath deposes and says that on yesterday, the 16th day of November, 1912, Frank Ross gave to him one pint bottle of whisky, or loaned it to him, and further this deponent says that he never paid the said Frank Ross any sum of money for same, or made him any promise of such payment, and that he has never in his life bought any intoxicating liquors from the said Frank Ross.” This was sworn to and acknowledged before H. F. Weldon, a notary public in and for Montague county, and witnessed by O. B. Downs. When confronted with' this affidavit during the trial, his mind became confused and very uncertain; in fact, all through his testimony it is made to appear that his mind, to say the least of it, was very forgetful, and that his memory was' very deficient about many things connected with the case. He testified that his memory was often at fault, and he did not remember many things. Downs testified that the witness Jones came before Weldon and made the statement above quoted, and that it was made under oath. The state’s case is entirely dependent upon the evidence of this witness. I desire to state that no man ought to be sent to the penitentiary or rendered infamous on the testimony of such a witness as this man Jones shows himself to be. A man whose memory is so defective, or, if that memory is good, is so wanting in the elements of truth ought not to be permitted to swear away the life or liberty of a citizen of Texas. If he was induced to make this affidavit and knew it was false, he ought to be held for perjury unless he is insane. If he is irresponsible for Ills testimony and was ignorant of what he was stating under oath, his testimony ought not to be used to incarcerate a citizen in the penitentiary. If he knew what he was stating and knew it was false, it may be that he was as well induced to give the other testimony (that is, that appellant sold him the whisky) as he was to make the affidavit quoted, and from any standpoint his testimony ought not to be credited, and a citizen of this state should not be confined in the penitentiary and rendered infamous on such testimony. No man ought to be held guilty of violating any law and the presumption of innocence held to be overcome and his good name as a citizen ruined on the testimony of one who is so careless, indifferent, or irresponsible as this man’s testimony and the facts in this record show this witness to be.

While the witness Arledge was testifying in behalf of the defendant, on cross-examination the county attorney asked him if he was not on defendant’s bond in this case and whether or not he had been on other bonds for defendant. Various objections were urged to this, among others that it was prejudicial, and that by proving by the witness that he had been on bonds of defendant in other cases was but a method of bringing before the jury that defendant had had other prosecutions pending against him, and because the state had no right, either directly or indirectly, to prove or allude to other and different prosecutions, and the court overruled these objections and permitted the witness to answer the county attorney’s questions in regard to these former bonds, and the witness in answer to the county attorney’s question said: “I am his bondsman at the present time; I think I have been on Frank’s bond before this. I could not tell you how often I have been on Frank’s bond, but every time he ask me to go on it.” The same matter was reserved in another bill of exceptions in regard to the witness Downs. He answered: “I could not tell how many bonds I have been on for him. It is more than one I suppose; I might have been on as many as half a dozen during my lifetime.” The court approves this with the explanation that: “Arledge showed considerable bias in favor of the defendant, and this testimony was admitted to show their feelings in the case, and it nowhere appears what kind of bonds they had signed for defendant. This court does think defendant was prejudged or that the result would have been different but for this.” This qualification of the judge intensifies the error. The court may have intended to say that he did not think appellant’s case was prejudged, and he may have intended to say he did not think the result would be different, but he did not say that. We must take the bill of exceptions as we find it. But even if we supply the defect in the judge’s qualification and make it read that he did not think defendant was prejudged, or that the result would be different but for this, that is but the opinion of the court. The jury were the judges of the facts and the credibility of the witnesses, and this may have determined the case against the defendant in the face of the evidence of the witness Jones heretofore discussed. It may be doubtful whether or not, under any view of the evidence, these witnesses should have been interrogated or permitted to swear as they did; but, resolving the doubt in favor of the ruling of the court and against the presumption of innocence of the accused in admitting this character of testimony to show the bias and prejudice of the witnesses as being in favor of the defendant, yet from this viewpoint the jury should have been instructed that they could not consider this testimony against the defendant, and that this evidence should only be used as bearing upon the credibility of the witnesses and weight to be given their testimony. Appellant did not take the stand himself and testify, therefore he was not asked about any former prosecutions, and he did not place his character in evidence. The character of the defendant was not involved in the case as an issue before the jury, for he alone could put that in evidence, and this he did not do. The question here is: Having used the fact that these witnesses had been on bonds heretofore in cases against the defendant, this character of evidence could not be used as original testimony, nor could it be used as evidence against the defendant, but could only be used as affecting the testimony of the two witnesses as to their credibility and standing or their partiality and bias in favor of the appellant. The jury should have been carefully so instructed that this testimony might only be used for its legitimate purpose, even if it be conceded it could be used as evidence. These questions were timely presented and urged in bills of exception and in the motion for new trial.

As this record is presented, for the reasons indicated I cannot concur in the affirmance. This judgment ought to be reversed and the cause remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    VEACH v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Ckimxnal Daw (§ 1090) — Bill cut Exceptions — Necessity.
    In the absence of bills of exception, complaints to the admission of testimony cannot be reviewed.
    IEd. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2653, 2789, 2803-2822, 2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Daw (§ 925) — Misconduct of Jury — New Trial.
    That the foreman of the jury upon retiring stated to the others that they could not consider the fact that accused did not testify does not, where there was no discussion of the matter, constitute misconduct authorizing a new trial, being a mere reiteration of the •charge of the court.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§2238-2247, 2250; Dee. Dig. § 925.]
    -3. Criminal Daw (§ 829) — Triai^-Instruc-TIONS.
    The refusal of special charges covered by •the charge given is not error.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. §■ 829.]
    ■4. Intoxicating Diquors (§, 148) — 'Offenses —“Sale”—What Constitutes.
    Where the possessor of intoxicating liquors •allowed another to take a quantity in consideration of his promise to subsequently return the same quantity of liguor, .there was a sale within the purview of the local option acts.
    [Ed. Note. — For other cases, see Intoxicating Diquors, Dec. Dig. § 148.

    For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.]
    •5. Intoxicating Diquors (§ 236) — Offenses — Evidence—Sufficiency.
    In a prosecution for the selling of intoxi-■eating liquor in prohibition territory, evidence held sufficient to support a conviction.
    • [Ed. Note. — For other cases, see Intoxicating Diquors, Cent. Dig. §§ 300-322; Dec. Dig. § •236.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Montague •County; C. F. Spencer, Judge.
    W. T. Veach. was. convicted of selling intoxicating liquors in prohibition territory, •and he appeals.
    Affirmed.
    W. S. Jameson, of Montague, H. F. Wel•don, of Bowie, and Seb F. Caldwell, of Austin, for appellant. C. E. Dane, Asst. Atty. ■Gen., for the State.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted .and convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year’s confinement in the .penitentiary.

In the motion complaint is made as to the admissibility of certain testimony. No bills of exception were reserved; consequently we cannot review those grounds. o

The fact that the foreman of the jury on their retirement stated to the others that they could not consider the fact that appellant did not testify was but a reiteration of the charge of the court to the jury. It is not sought to be shown that such fact was offered to be discussed. The other grounds alleged as to the misconduct of the jury are equally groundless.

The special charges requested were covered by the court’s main charge, and there was no error in refusing them.

The only ground in the motion that presents a question for serious consideration is the one that alleges the insufficiency of the testimony to support the verdict. Several witnesses testify that about the 2d day of October they went to appellant’s wagon yard and camp house; that when they went in appellant was filling bottles with whisky; that there were about a dozen bottles on the table; that two gallon jars of whisky were in the house and another was found in the manure pile just outside of the house; that two bottles of whisky were found in another room. It is further shown that about this time Harry Winn went up to appellant’s place and was given a drink of whisky by him; that he then left but when he decided to leave town he returned and took another drink with appellant, then placed the bottle in his pocket, remarking to appellant that he would take it “and would make it all, right with him; that he intended to repay appellant by returning to him a like quantity of whisky.” If this is true, under our decisions this would be a sale; and, while the testimony of this witness is not very satisfactory, yet there is no denial that this really and truly represents the transaction, and the jury under a proper charge finds appellant guilty. The trial court heard the testimony and overrules the motion; and shall we at this distance say this testimony does not show a sale under our decisions, although this witness testifies in a way that we do not feel like giving but little credence to his testimony? The jury gave it sufficient credit to find appellant guilty; and, taking into consideration the quantity of whisky appellant is shown to have had on hand at this time, we cannot say there is not sufficient evidence to sustain the verdict.

The judgment is affirmed.

DAVIDSON, J. I refer to Ross v. State, 159 S. W. 1063, for my views in this case.


text:
    BETTS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Criminal Daw (§ 1118*) — Continuance-Rulings — Review.
    Denial of a continuance is not reviewable on appeal where the application therefor is not copied in the hill of exceptions in the record complaining of the denial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.]
    2. CRIMINAL Law (§ 1180) — Appeal — Law op the Case.
    Where rulings on evidence and instructions were reviewed by the court on appeal, they will not be reviewed on a subsequent appeal in the same case.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3002-3004; Dec. Dig. “ 1180.]
    3. Criminal Law (§ 1141) — Instructions— Objections — Review.
    Where the court defined in its instructions the offense of manslaughter, of which accused was convicted, accused, complaining of the definition, must point out the errors therein, or the court will not review it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3015, 3020, 3022, 3023; Dec. Dig. § 1141.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    T. M. Betts was convicted of manslaughter, and he appeals.
    Affirmed.
    J. W. Moyers, of Mineral Wells, J. C. George, of Stephenville, P. C. Sanders, of Palo Pinto, Chandler & Pannill, of Stephen-ville, and Watson & Simmang, of Giddings, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted on this trial of the offense of manslaughter, and his punishment was assessed at five years’ confinement in the penitentiary. This is the fourth appeal in this case; the opinions in the former appeals being reported in 57 Tex. Cr. R. 389, 124 S. W. 424, 60 Tex. Cr. R. 631, 133 S. W. 251, and 144 S. W. 677, and the facts are so fully stated in these opinions we do not deem it necessary to state them again.

There is no motion for a continuance in the record, and, while there is a bill of exceptions in the record complaining of the action of the court in overruling his motion for a continuance on account of Mrs. Betts, the application is not copied in the bill, and, not being in the record, we cannot review this matter. The court in approving the bill states that the motion was defective and wholly insufficient in law, and, if this is true, were the motion for continuance copied in the record, it would not be of any avail to appellant.

The appellant again objected to the testimony of Bland Marshall, Lena Jones, and Bates Cox. As this testimony was held admissible in all three of the former opinions, we do not deem it necessary to discuss the question again.

Appellant complains that the court erred in not defining manslaughter. As the court did define this offense, if any error there be in such definition, appellant does not seek to point it out. Appellant’s complaint of the charge as specified in bill No. 7, and in the seventh paragraph of the motion, was passed on by this court in the former appeal in this ease reported in 60 Tex. Cr. R. 631, 133 S. W. 251, and under such circumstances we will not again review the question.

The court submitted the issue of aggravated assault as favorably to appellant as the evidence authorized, and in accordance with the former opinions in this case. All the questions presented on this appeal have been decided adversely to appellant in the former opinions in this case.

The evidence supports the verdict, and the judgment is affirmed.


author: DAVIDSON, P. J.

text:
    LYONS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Homicide (§ 300*) — Instructions — Self-Defense.
    In a prosecution for homicide, where accused claimed that deceased insulted him and threw his hand toward-his hip pocket as if to draw a weapon, whereupon accused shot deceased, accused was entitled to an instruction on the right of self-defense on the appearance of danger, independent of previous threats, although an instruction upon the right of self-defense in connection with threats is necessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]
    2. Homicide (§ 116*) — Triai>-Instructions— Self-Defense.
    In a prosecution for homicide, accused may justify upon the ground of self-defense by reason of apparent danger, and an instruction on self-defense, where there was no actual attack, which charged that if defendant believed that deceased had threatened his life and at the time of the homicide deceased by some act then done manifested an intention to execute the threat as viewed from the standpoint of defendant, then he should be acquitted, even though the jurors might not believe that defendant was in any danger at the time of suffering serious bodily harm or injury, omitting his right to defend if he believed deceased intended to kill him, improperly limited the right of self-defense.
    LEd. Note. — For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*]
    3. Homicide (§, 151*) — Self-Defense—Burden of Proof.
    Where self-defense is set up, the burden of proving it is not upon the defendant, and an instruction requiring the jury to believe the defensive theory before they can acquit is improper; this being particularly so where the self-defense was based on the ground of apparent danger and the charge required the jury to find that an attack had been made upon accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.*]
    4. Homicide (§ 300*) — Trial—Instruction.
    In a prosecution for homicide, where it appeared that the parties had no actual conflict, but accused claimed that he shot deceased because the latter, after insulting him, reached towards his hip pocket where he usually carried a gun, a charge which placed the right of self-defense on the question of the relative strength of the parties is error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 300) — 'Trial—Instructions.
    In a prosecution for homicide, where accused set up self-defense claiming that deceased, when he insulted him, immediately reached for his hip pocket, whereupon accused killed deceased, an instruction upon excessive force is improper; there being no place for the doctrine of excessive force in the evidence.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig; §§ 614, 616-620, 622-630; Dee. Dig. §, 300.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    B. Lyons was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Marsene Johnson and Elmo Johnson, both of Galveston, for appellant. C. H. Theobald, Co. Atty., and Eugene A. Wilson, Asst. Co. Atty., both of Galveston, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. J.

Appellant was convicted of manslaughter and given five years in the' penitentiary.

The state’s theory of the case was an unprovoked killing; that deceased was at a house of prostitution on Christmas night in a room with a woman whom he, though married to another woman, had been living with off and on for some years in adultery; that appellant had been in the room with deceased and this woman and had gone off to bring some intoxicating liquor for the three, had returned and asked for deceased; that he went into the woman’s room at her invitation where deceased was, and, while the woman had her arms around the neck of deceased and was doing nothing, appellant shot and killed him. This was in substance the testimony of the state’s witness, Mabel George, who witnessed the homicide. For the defense it is shown that deceased was a violent man who went habitually armed and was shown to have had a pistol a short time prior to the homicide and had exhibited it in the house where the homicide occurred within a couple of hours before the killing, and that appellant saw him exhibit the pistol and heard him make the statement he expected trouble and was ready for it. It was also shown that he had assaulted the woman Mabel George and other women with pistols and had beaten them over the head with pistols.- It was further in evidence deceased had made threats to take appellant’s life. Those threats were communicated to appellant before the homicide, and there was also evidence of threats to kill appellant, made by deceased directly to appellant prior to the homicide, as well as deceased had uttered gross insults about the mother of appellant, which were communicated to appellant, and also uttered at the time of the homicide by deceased directly to appellant. It was further in evidence: That appellant was at the house where the homicide occurred and had gone to get the intoxicating liquors at the request of deceased. All the parties were drinking. That he returned to the house, and, on meeting deceased in the room of Mabel George, deceased asked defendant if he was interfering with them, .himself, and Mabel George and cursed defendant, and Mabel George asked deceased not to curse the defendant, and that the deceased then said to defendant: “You know I have got it in for you; I got no use for you anyway.” That deceased then repeated the insults he had said concerning appellant’s mother, which were of an outrageous nature, and said to appellant: “Don’t you like it? If you don’t, I don’t give a damn.” The defendant then said, “Certainly I don’t like it.” Deceased then reached towards his hip pocket, whereupon appellant shot and killed him. The insulting language in regard to the mother of appellant was,_ without repeating it in its vulgar form, that he (deceased) had been sleeping with appellant’s mother. The evidence further shows deceased was shot twice.

The charge on self-defense is criticised and made the basis of appellant’s contention for a reversal of the judgment. Referring to the charge on self-defense, we find this: “Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one’s person against any unlawful and violent attack, made in such a manner as ■ to produce a reasonable expectation or fear of death or some serious bodily injury.” Another clause of the charge on this subject is as follows: “A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.”

Applying the law to the case the court thus charged the jury: “If from the evidence you believe the defendant killed the said W. Sherrard but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectations or fear, the defendant killed the deceased, then you should acquit him; or if the defendant believed that deceased had threatened his life, and this threat had been communicated to the defendant before the homicide, and at the time of the homicide deceased by some act then done manifested an intention to execute the threat, as viewed from the standpoint of the defendant at the time of the homicide, then you will acquit the defendant, even though you might believe from the evidence that the defendant- was in no danger at the time of suffering serious bodily harm or injury at the hands of the deceased, or, if you have a reasonable doubt on this point, you will acquit the defendant.”

This is the entire charge on the issue of self-defense. There are quite a number of exceptions taken to this charge. It is deemed unnecessary to state them. They present these matters from almost, if not quite, every standpoint upon which exceptions could well be urged. It is the well-settled law of Texas that a party is entitled to a charge on self-defense independent of a charge on threats. See Branch’s Criminal Raw, § 482, for collation of authorities, where he lays down this rule: “Wherever self-defense is an issue, defendant is entitled to a distinct and affirmative charge on that issue apart from and untrammeled by a charge on self-defense in connection with threats.” McDowell v. State, 55 Tex. Cr. R. 600, 117 S. W. 831; Dundy v. State, 59 Tex. Cr. R. 131, 127 S. W. 1032; Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 335; Fuller v. State, 95 S. W. 1039. Appellant’s defensive matter was, when he walked into the room where Mabel George and deceased were, deceased, after stating to them that he had slept with the mother of appellant, threw his hand to his hip pocket as if to draw a weapon and appellant shot. This gave him the right of self-defense on the appearances of danger independent of threats. Under all the authorities, appellant was entitled to a clear-cut well-defined charge on self-defense from appearances of danger, and also a distinct affirmative charge independent of the other charge on self-defense viewed in the light of threats.

Again the court’s charge is attacked on account of the peculiar language given by the court: “If the defendant believed that deceased had threatened his life, and this threat had been communicated to the defendant before the homicide, and at the time of the homicide deceased by some act then done manifested an intention to execute the threat, as viewed from the standpoint of the defendant at the time of the homicide, then you will acquit the defendant, even though you might believe from the evidence that the defendant was in no danger at the time of suffering serious bodily harm or injury at the hands of the deceased.” That clause of the charge is attacked, first, because it limited appellant’s right of self-defense to serious bodily harm, omitting his right to defend if he believed deceased was going to kill him. This under all the authorities is error. For collation of authorities, see Branch’s Grim. Law, § 482. Wherever appellant seeks to justify upon self-defense or from appearances of danger or self-defense viewed in the, light of threats, he is entitled to have the case presented from his standpoint, and not what the jury might believe about it, but the jury must view it in the light it presented itself to the accused at the time of the transaction, and he is as much entitled to the right of self-defense viewed from both standpoints as resisting the attack from threats to take his life as doing bodily harm. This quoted charge ignores this phase of the law. Appellant had the right to act from the appearances of danger as well as from an actual attack. It will be noticed that the charge of the court in making the application to the facts limited the consideration of the jury to an actual attack made upon him, which from the manner and character and relative strength of the parties, etc. There was no actual attack testified by any witness in the case. It was one of self-defense purely from the standpoint of apparent danger. Under all the authorities that have been called to our attention, the party is entitled to a clear well-defined charge on the issues made by the testimony. There was not a fact introduced by either side showing an actual attack. All the testimony bearing on this question shows that it was only apparent danger. Holmes v. State, 155 S. W. 205; Parish v. State, 153 S. W. 327; Rhea v. State, 148 S. W. 578; Brady v. State, 65 S. W. 521; Johnson v. State, 63 Tex. Cr. R. 56, 138 S. W. 1021; Barnes v. State, 57 Tex. Cr. R. 450, 125 S. W. 39; Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 432; Nix v. State, 74 S. W. 764; Stewart v. State, 40 Tex. Cr. R. 649, 51 S. W. 907; Watson v. State, 50 Tex. Cr. R. 176, 95 S. W. 115; Adams v. State, 47 Tex. Cr. R. 347, 84 S. W. 231; Branch’s Crim. Law, § 482.

This charge on self-defense also shifts the burden of proof and places it upon the defendant and requires the jury to believe the defensive theory before they can acquit. This is not the correct rule. Castro v. State, 146 S. W. 554, and authorities therein cited. It will be noted, by recurring to the quoted charge again, the language is: “If from the evidence you believe the defendant killed the said W. Sherrard but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it,” etc. The jury was here instructed they must believe that deceased had made an attack on appellant which caused him to have a reasonable expectation or fear of death or serious bodily injury. Therefore the jury was required to believe that deceas-• ed had made an attach on appellant before they could “acquit, when the testimony all excluded such a theory. The testimony only raised the issue of apparent danger, first, from the movements of the deceased, and, second, these movements viewed in the light of previous threats. This becomes a serious matter by reason of the fact it was submitted to the jury directly in applying the law to the case, and it was upon that theory alone, in applying the law to the case, that they were authorized to acquit. Many of the authorities already cited are directly in point. See, also, Phipps v. State, 34 Tex. Cr. R. 564, 31 S. W. 397; Phipps v. State, 34 Tex. Cr. R. 610, 31 S. W. 657; Poole v. State, 45 Tex. Cr. R. 365, 76 S. W. 565. The jury was not required to so believe before they could acquit. The defendant must so believe, and the state must so prove.

The charge is also criticised because it limits the right of self-defense to the question of the “relative strength of the parties.” This ought not to have been included in the chargé, and upon another trial it should not be inserted in the charge. If there had been a test of physical strength in connection with the difficulty, this charge could have been appropriate if there had been any evidence on the question. The fact that the size or strength of the parties may be incidentally shown would not justify this charge in a case of this character. The parties did' not have any test of physical strength; all the testimony excludes this. The state’s contention is that appellant in an unwarranted manner fired upon and killed deceased when he was doing nothing. Appellant’s testimony is that he made the insulting remarks about his mother and reached to his hip pocket where he had seen him shortly before have a pistol. The question of relative strength of the parties as applied to the facts of this case ought not to have been charged. For authorities bearing upon this question, see Anderson v. State, 144 S. W. 281; Sanchez v. State, 149 S. W. 124; Robbins v. State, 155 S. W. 938; Lockhart v. State, 53 Tex. Cr. R. 589, 111 S. W. 1024; Vann v. State, 45 Tex. Cr. R. 445, 77 S. W. 813, 108 Am. St. Rep. 961; Hickey v. State, 45 Tex. Cr. R. 297, 76 S. W. 920; Hickey v. State, 138 S. W. 1059.

Another clause of the charge is criticised in this connection, and it is that wherein the court charged the jury that every person is permitted by law to defend himself against any unlawful attack- reasonably , threatening injury to his person and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. The doctrine of excessive force finds no place in this record under the facts. Appellant either had the right of self-defense, viewed in the light of the movements of deceased and his threats, or he had no right of self-defense. The doctrine of excessive force does not apply in a case of this character. See Castro v. State, 146 S. W. 554; Mayhew v. State, 144 S. W. 230, 39 L. R. A. (N. S.) 671; Antu v. State, 147 S. W. 234; Comegys v. State, 62 Tex. Cr. R. 231, 137 S. W. 349; Parish v. State, 153 S. W. 327; Ballard v. State, 62 Tex. Cr. R. 435, 138 S. W. 120; Scott v. State, 46 Tex. Cr. R. 313, 81 S. W. 950; Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875; Rice v. State, 51 Tex. Cr. R. 286, 103 S. W. 1156. This error, it occurs to us, is intensified and made more acute against and injurious to the defendant by reason of the fact the court limited the right of self-defense in applying the law to the ease to an actual attack, and further it required the jury to believe the actual attack was made. From any standpoint, the doctrine of excessive force was not applicable to any phase of this record.

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


author: DAVIDSON, P. .T.

text:
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    On Motion for Rehearing, Oct. 22, 1913.)
    1. Criminal Law (§ 814) — Issues—Evidence —Instructions.
    Where the prosecutor testified to a sale of liquor by accused in local option territory and accused denied the making of the sale, a charge on alibi raised a false issue constituting reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833,1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dee. Dig. § 814.]
    2. Criminal Law (§ 369) — Intoxicating Liquors (§ 233*) — violation of Local Option Law — Evidence—Admissibility.
    AVhere accused denied making a sale of beer to prosecutor in violation of the local option law, the admission of evidence of another sale by accused to prosecutor and of the fact .that two or three days after the alleged sale of beer the officer arresting accused found whis-ky and beer and empty beer bottles, from some of which beer Had been recently emptied, was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369; Intoxicating Liquors, Cent. Dig. §§, 293-297, 298%; Bee. Dig. § 233.]
    Davidson, P. J., dissenting in part.
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Perry Mitchell was convicted of selling intoxicating liquors in violation of the local option law, and he appeals.
    Reversed and remanded.
    Henry S. Bishop, Dist. Atty., of Amarillo, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. .T.

The indictment charges appellant with selling intoxicating liquors in violation of the local option law, alleged to be beer.

The state’s case depended upon the testimony mainly of a witness named Bonney, who testified that he bought two bottles of beer from appellant. He says this occurred in what was known as the Panhandle or Willis hotel about the 29th of May, 1912. That he got the beer out of a barrel, but being questioned a little closer he says he got the bottles out of a tub where it had been placed on ice in the northwest corner of the hotel upstairs. The witness did not know who was running the hotel at the time. He also testified that he made another purchase which was whisky. It occurs from his testimony this was a different transaction about which appellant was being prosecuted, and he was also in that case a witness against appellant. He says his testimony will come in that ease against appellant. He says: “I have a whisky case, too, after this.” There is a great deal of testimony from this witness as to where he lived, his detective work, etc., which we deem unnecessary to notice. He states, among other things, there was another witness present at the time of this transaction, but this witness was not produced at the trial. The state introduced the sheriff of the county, who testified that a few days after this transaction, perhaps about 2d of June, he went to arrest defendant and saw quite a lot of beer bottles, some of them having foam in them which he thought indicated they had been freshly used; that is, the beer had recently been emptied from them. He also testified to seeing a few bottles of beer in a bucket in some ice in a room in the hotel other than that indicated by the witness Bonney. The sheriff found nothing in the room indicated by Bonney. The defendant testified that he had rented the hotel and had spent two days, 29th and 30th of May, cleaning the hotel for the purpose of moving in and occupying it, which he did about the 1st of June. He denied in toto the sale testified by Bonney, stating that no such matters had occurred. On cross-examination the state proved that appellant had been indicted for other offenses.

Submitting the case to the jury, the court informed them that the law declared that if any person should sell any intoxicating liquor in any subdivision of a county, in which the sale of intoxicating liquors has been prohibited under the laws of this state, he shall be punished by confinement in the penitentiary not less than one nor more than three years. Applying the law to the case, he instructed them that if they believed that on or about the 29th day of May, 1912, or at any time between the 16th day of November, 1911, and the 16th day of July, 1912, appellant did then and there unlawfully sell intoxicating liquors, to wit, beer, to I. T. Bon-ney, as charged in the indictment, then they would find the defendant guilty. The court then charged upon the issue of alibi. Various objections were urged to the court’s charge, among others, that the court erred in submitting the doctrine of alibi. We are of opinion that that question was not raised by the evidence and it assumed a fact against defendant which was detrimental. Appellant denied making the sale, and it was a square issue between the defendant and the state’s witness Bonney as to whether such sale occurred. The issue was not whether he was present or absent so much as it was the fact that the sale was made. Of course, if appellant was not present there was no sale. The state’s case was that he ma de the sale. The defendant’s evidence is that he did not make the sale. There is no question that nobody else could have made the sale except the defendant, so far as the state is concerned. Bonney fixed the defendant, and the defendant only, as being the seller. The issue, then, was sharply drawn whether there was a sale made or not, not that the defendant was not present, but that there was no sale jnade. The charge assumes the sale was made and' the defendant was setting up an alibi at the time to leave the impression that, while a sale might have occurred between Bonney and somebody else, it was not between Bonney and himself. To put the case in this attitude before the jury was submitting a false issue and one not raised by the state or defendant. The issue was whether it was a sale or not. It is not conceded by appellant that there was a sale made, and he did not participate in it; nor did the state contend that a sale was made by any one else. The court turned the charge to the jury upon a false issue, and it was certainly detrimental to the defendant. Under the alibi theory a sale could have been made to Bonney and defendant not present or participating in it, but under the testimony of Bonney this could not have occurred. Defendant denied absolutely making any sale.

The court permitted the witness Bonney to testify to another sale made by defendant to himself otherwise than the beer in question, which was denied also by the defendant. He also permitted the witness Burwell to testify that two or three days after the alleged transaction he was at appellant’s house and at which time he arrested him he found some whisky and a barrel of empty beer bottles, and from some of them he thought beer had been recently emptied or drank, becadse there was foam in the bottles, and also that he found some beer in a bucket with some ice. Complaint is made the court did not limit the effect of this testimony and instruct the jury for what purpose he admitted this testimony, the contention being that it was not admissible under the circum-, stances of the case, because it was a square issue as to whether or not there was a sale-made as affirmed by the witness Bonney and denied by appellant, the other witness whom Bonney said was present not being produced at the trial. This being the attitude of the testimony, it was not permissible to use this sort of testimony, but, if it was, then it should have been limited for the purpose for which it was introduced, and the jury instructed they could not convict in any of those transactions. It is sometimes the case where the court may admit testimony of this sort, but that rule does not obtain in a case where the issue is drawn sharply as to a sale vel non. This testimony having been admitted, the court should have limited it and instructed the jury they could not use any of this testimony as a basis for conviction. Where it is intended to show system or develop res gestee and the court admits such testimony for that purpose, it should be so limited. The state had made its case if the jury should believe the witness, by positive evidence of a sale. The defendant had proved by equally positive evidence that the sale did not occur. Appellant was not charged with pursuing the business of selling intoxicants; he was simply charged with making one sale. We are of opinion, as this record shows these matters, this was error, and for the reasons indicated the judgment ought to be reversed, and it is accordingly so ordered. My Brethren are of opinion the evidence of Burwell is admissible under Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392, and cases following that case, and testimony need not be limited in the charge of the court. See Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing, alleging error in reversal of the judgment because: First, the court erred in permitting evidence to be introduced showing the sales of other liquors than that charged in the indictment ; second, by failing to give a charge limiting said testimony; and, third, by charging on alibi. The writer does not exactly understand this motion. There is nothing to indicate in the opinion the judgment was reversed because of the introduction of evidence. There was no bill of exceptions. There is an expression in the opinion, in substance, that the writer does not believe certain testimony ought to have been introduced, but it was not reversed upon that ground, because no exception was taken, and in that connection stated that the testimony ought to have been limited. It was in regard to other sales. It is unnecessary to discuss that matter, but the opinion of the majority did not agree with the writer on that proposition. While in writing the opinion the name of Burwell was mentioned in regard to limiting his evidence, yet the evidence of the other witness was of the same import and of course would be governed by the opinion of the majority in regard to that matter

In regard to the other proposition (that is, that the trial court erred in charging on alibi), we are still of opinion there was no error in reversing on that question. There was no evidence showing an alibi either by the appellant or by the state, and the court turned the case upon a false issue when he instructed the jury in regard to alibi. Appellant denied the sale absolutely The witness Bonney for the state testified to it positively. The sale could not have been made by appellant if he was not there. He did not raise any question of his absence. Bonney swore positively that he bought the intoxicating liquor from him. Appellant simply denied the transaction in toto. This was assuming an issue in the case which assumed the sale was made and the appellant absent. Appellant did not deny his absence but denied the sale. The opinion of the court in reversing the judgment on the alibi proposition is correct. Upon another trial, under the views of the majority of the court, the admission of the testimony of the two witnesses Bonney and Burwell would not be error.

The motion for rehearing is overruled.


author: SPEER, J. CONNER, C. J.

text:
    BULL et al. v. BEARDEN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 5, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. COURTS (§ 475) — Jurisdiction—Priority.
    Where plaintiffs were entitled to maintain trespass to try title, the fact that they had resorted to an action of forcible entry and de-tainer, which was pending in the county court, to recover possession will not deprive them of the remedy of trespass to try title in the district court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1229, 1231-1239, 1247-1259; Dec. Dig. § 475.]
    2. Trespass to Try Title (§ 32) — Sufficiency.
    A petition alleging that plaintiffs own in fee certain lands, known as the cold storage and ice house property in the town of Mingus, described as lot 7 in block 1, and are entitled to possession of the same, but that defendants forcibly entered upon the premises, seized and occupied the same, and continue to hold the same by virtue of a worthless appeal bond given in a forcible entry suit brought in a justice’s court, whence defendants appealed from an adverse judgment to the county court, and praying for an injunction restraining defendants from further occupying the premises and for further relief, is sufficient to state a cause of action of trespass to try title under Rev. Civ. St. 1911, art. 7733, declaring that the petition shall state the names of the parties, describe the premises, the interest of plaintiff, and that he was entitled to possession and ousted by defendant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32.]
    3. Injunction (§ 136) — Issuance of Injunction:
    Under Rev. Civ. St. 1911, art. 4643, providing that an injunction may be granted in vacation when it appears that pending the litigation one party is doing or threatening to do some act which would tend to render judgment ineffectual, plaintiffs, who were the owners in fee of land, are, where defendants entered on the land as trespassers and ' withheld possession even after a forcible entry and detainer suit by virtue of a worthless appeal bond, entitled to an injunction to restrain defendants from further interfering with the land; it appearing that pending the determination of plaintiffs’ suit to quiet title plaintiffs would lose the mesne profits and rents.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. § 136.]
    4. Courts (§ 472) — State Courts — Texas— County Courts.
    While the power of the county court, within the exclusive sphere of its jurisdiction, to issue injunctions is exclusive, the commencement of an action of forcible entry and detain-er in the county court, in which the defendants took an appeal and retained possession by means of a worthless appeal bond, will not preclude the plaintiffs from enjoining the defendants from interfering with the possession of the land, as an incident to a suit to quiet title brought in the district court, for nothing but the right to possession could be adjudicated in the forcible entry and detainer case, while in trespass to try title the right to the land may be determined.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204-1224, 1247-1259; Dec. Dig. § 472.]
    5. Forcible Entry and Detainer (§ 6)— Nature of Remedy.
    The remedy of forcible entry and detainei-is not exclusive but is cumulative of any remedy which landowners may have in the district court.
    [Ed. Note. — For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 29-32; Dec. Dig. § 6.]
    6. Election of Remedies (§ 3) — Necessity of Election.
    The fact that plaintiffs brought a forcible' entry and detainer action to recover possession of their land will not deprive them of the right to maintain trespass to try title in the district court; the remedies not being inconsistent.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.]
    Conner, C. J., dissenting.
    Appeal from District Court, Palo Pinto-County; W. J. Oxford, Judge.
    Suit by T. P. Bearden and another against George W. Bull and another. From a judgment granting an interlocutory injunction, defendants appeal.
    Affirmed.
    Earl Conner, of Eastland, for appellants. W. P. Gibbs, of Gordon, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   SPEER, J.

This is an appeal from an interlocutory order upon an ex parte hearing, granting an injunction upon- the following petition: “Petitioners, T. P. Bearden and W. N. Cox, composing the firm of Bearden & Cox,, complaining of S. B. Britton and George W. Bull, represent that both plaintiffs and defendants reside in Palo Pinto county, - Tex. That plaintiffs own in fee simple the land and premises hereinafter described and are entitled to the possession of same. That heretofore on the 13th day of May, 1913, the defendants forcibly entered upon said premises,, seized and occupied same, and continue to-hold, use, and occupy same, over the protest of plaintiffs, who have repeatedly requested defendants to vacate said premises to the-end that, on or about the 14th day of May,, plaintiffs instituted a forcible entry and de-tainer proceeding against the defendants in> the justice court in precinct No. 3, in Palo-Pinto county, Tex., for the possession of the premises complained of, which suit, after due- and proper service of citations upon the defendants, who were present at the trial of said cause but made no answer therein, nor offered any evidence and did not set up any defense whatever but sat idly and mutely by and watched the performance of the trial in the guise of (innocent bystanders). In which trial judgment was rendered and entered for plaintiffs,' granting them the possession of said premises with writ of restitution and. execution, since which time and within the-period required by law the defendants presented an appeal bond as required by law for appeal in such cases to the county court of Palo Pinto county, Tex., with J. T. Wil-bar, A. Y. Ware, J. T. Spratt, George McKinney, W. F. Harris, J. Y. Bankhead, Pete Tarameno, Bob Gamfield as sureties thereon, which appeal bond has been approved by the court trying said cause, wherefore said cause is now pending appeal in the county court of Palo Pinto county, Tex., which court does not convene until the 27th day of July, 1913, thus leaving defendants in the possession of the premises complained of pending judgment in said county court as aforesaid. That plain-' tiffs are informed and believe and charge the fact to be that neither of said sureties are solvent and have no property within the jurisdiction of the court out of which any money could be made upon execution. That both of the defendants are insolvent and that said bond is worthless as far as the purposes of said suit are concerned, wherefore plaintiffs are left without a remedy for any damages for the detention of the possession of said premises pending trial and judgment in the county court. That the premises complained of consist of the lots and buildings known as the cold storage and icehouse at Mingus, Tex., and is of the value of $1,000, and the monthly rental value of same is worth $60 per month during the summer season, which is now on, for the purpose of handling ice and cold storage property. That plaintiffs are in the ice and cold storage business and desire to occupy said premises for said purpose. That to wait and bide the trial and judgment of the county court as aforesaid will work an irreparable injury to plaintiffs with only a remedy upon a worthless appeal bond for damages. That the defendants are naked trespassers without any defense at all whatever in support of their possession of the premises complained of; had all opportunity in the justice court as aforesaid and offered none. .That the ice season is now on and evidently the purposes of such appeal can only be to hold and use the premises through the present ice season by virtue of this worthless appeal bond, to plaintiff’s damage in the sum of rental value of said premises for the time thus occupied in the sum of $600. That plaintiffs are left without an adequate remedy at law for the relief sought. That plaintiffs are desirous that they be permitted to occupy said premises at the earliest possible moment as being in the ice business, with customers and contracts awaiting them for performance, and having arranged said premises for said purposes to meet the demand of the business for the season. That the premises complained of are situate in the town of Mingus, in Palo Pinto county, Tex., and known and described as lot No. 7 in block No. 1, as described in the plat of said town, and known as the cold storage and icehouse at Mingus, Tex. Wherefore, premises considered, plaintiffs pray that the most gracious writ of injunction issue restraining the defendants, S. B. Britton and George W. Bull, and their agents and employes, from the further occupancy of said premises for any purpose whatever, and that they be required to vacate same at once, and for his damages, for costs, and general relief.”

No briefs are filed by either party, and we therefore confine our investigation to those questions raised by the appellants in their assignments of error filed below. The gist of these assignments is that the distinct court was without jurisdiction to issue the writ since the petition of complainants showed that the county court of Palo Pinto county had acquired jurisdiction of the issues involved and that its jurisdiction was therefore exclusive. But we think an answer to all these assignments is found in our conclusion that the petition states a cause of action for the recovery of the lands described as in an action of trespass to try title. That the facts pleaded would show the complainants entitled to the writ of forcible entry and detainer, or that they had even resorted to that remedy, would not, we think, deprive them of their remedy in the district court. Andrews v. Parker, 48 Tex. 94; Thurber.v. Connors, 57 Tex. 96; McDannell v. Cherry, 64 Tex. 177.

When tested by article 7733, Revised Civil Statutes 1911, appellees’ pleading appears to meet all the requirements of the statute as a petition in an action of trespass to try title, especially in the absence of an exception.

The writ of injunction under the allegations made was properly granted as an incident to the relief demanded and as such was properly authorized by article 4643, Revised Statutes 1911.

It is often held (Dean v. State, 88 Tex. 290, 30 S. W. 1047, 31 S. W. 185; Lazarus v. Swofford, 15 Tex. Civ. App. 367, 39 S. W. 389; Foust v. Warren, 72 S. W. 404; T. & P. Ry. Co. v. Butler, 52 Tex. Civ. App. 323, 114 S. W. 671), and of the correctness of this holding we have no doubt, that the power of the county court within the exclusive sphere of its jurisdiction to issue the writ of injunction is exclusive. But this rule in no manner contravenes the holding in this case, since, if we are right in our construction of the petition, the issues in the county court and in the district court were not the same. Under the statute (Revised Statutes 1911, art. 3950) in the forcible entry and detainer case, the only issue which can be determined is the right to actual possession; an inquiry as to the merits of the title being forbidden. While in the action of trespass to try title of course the scope of the issues is very much enlarged and the merits of the title do become an issue. So that, when tested by the rule announced in the authorities cited, the right of the county court to issue the injunction, even though it be conceded to exist in the forcible entry and detainer case, is not exclusive of the power of the district court to issue the writ in a trespass to try title case where the complainant otherwise shows himself entitled to the relief. We apprehend a plaintiff who had made an unsuccessful effort through an action of forcible entry and detainer tc regain the possession of his land would not upon a plea of res adjudicata be estopped thereafter to recover the title and possession through an action of trespass to try title in the district court. For the same if not a greater reason, then, the mere pendency of the forcible entry and detainer case would in no manner preclude him from having all proper relief in the district court. The remedy of forcible entry and detainer is not exclusive but cumulative of any remedy the appellees may have in the district court. Juneman v. Franklin, 67 Tex. 411, 3 S. W. 562.

For the reasons already stated, the doctrine of election of remedies has no application. To be applicable the remedies must be inconsistent (Southern Ry. Co. v. City, 147 Ala. 653, 41 South. 664) to such an extent that the party cannot choose the one without renouncing the other (State v. Bank of Commerce, 61 Neb. 22, 84 N. W. 406), for if the two remedies, even dealing with a single subject of action, are not inconsistent, both may be employed concurrently, though a satisfaction of one would be a satisfaction of all. Rowell v. Smith, 123 Wis. 510, 102 N. W. 1, 3 Ann. Cas. 773.

There is no error in the judgment, and it is affirmed.

CONNER, C. J.

(dissenting). It will be noted that the petition of the plaintiffs set out in the opinion of the majority contains no allegation that the defendants have injured, or in any way threaten to injure, the property for the possession of which the plaintiffs sue; the injury complained of being a threatened loss of its rental value. The damages thus arising are fully protected by the terms of the bond given upon appeal to the county court, which the petition confesses was duly approved by the justice of the peace. See article 3957, Revised Statutes 1911. The insolvency of the sureties on this bond is averred only upon information and belief without supporting affidavits, notwithstanding which, upon the verified petition above, the order appealed from in this case was made mandatory in form. It commands the “defendants, their agents and employes, to immediately vacate lot 7 in block 1, in the town of Mingus, known as the cold storage and icehouse at Mingus, Tex., and to surrender possession of same to plaintiffs, and to not interfere with plaintiffs’ possession of said property until further order of this court.” Under these circumstances it may be gravely doubted whether the petition shows a right at all to a mandatory injunction; it being the rule that courts of equity are always reluctant to grant a mandatory injunction upon an interlocutory application and before final hearing save where the right is clearly established and the invasion of the right results in serious injury. See 1 High on Injunctions, § 2; and 22 Cyc. 742. But, without stopping to further consider the sufficiency of the petition in this respect, it seems clear to the writer that relief, if any, can only be extended by the county court where the petition shows the case is now duly pending upon appeal.

As the writer construes the petition, the issue of title is not presented save as incidental to the issue of appellees’ right to the possession of the real property described in the petition. They allege that the defendants are wholly without title (mere trespassers); there is no prayer that the title be adjudicated; the petition is not indorsed “that the action is brought as well to try title as for damages,” as required by Revised Statutes, art. 7734, relating to suits in trespass to try title, nor does the petition set forth any other fact, as the writer thinks, showing that the district court alone has jurisdiction of the matter in controversy. On the contrary, it affirmatively appears that upon the facts alleged the appellees themselves first invoked the jurisdiction of a justice court having full power in an action of forcible entry and detainer, so that as stated the issue of title is only incidentally involved; and in such cases the justice court in the first instance and the county court on appeal has undoubted power to determine a question of title in so far as it may be involved. Porter v. Porter, 2 Willson, Civ. Cas. Ct. App. § 433; Melvin v. Chancy, 8 Tex. Civ. App. 252, 28 S. W. 241; Espey v. Boone, 33 Tex. Civ. App. 83, 75 S. W. 570; Springer v. Collins, 108 S. W. 758; Penney v. Woody, 147 S. W. 872; City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681. I am not unmindful of the decisions cited by the majority (Thurber v. Connors and Others) holding that the district court is an appropriate tribunal for the trial of the mere right to the possession of land, but it must be conceded that its jurisdiction in this respect is merely concurrent with that of the justice court, or county court on appeal, to try simple possessory rights to land, and I know of no case, and none has been cited, where the power of the district court has been upheld as against that of another court of equal power over the' subject-matter where it appears, as here affirmatively shown on the face of appellee’s petition, that such other court has first' acquired jurisdiction and has not yet disposed of the case. The rule is that, of courts having concurrent jurisdiction over a controversy, the one first acquiring it is entitled to maintain it and to proceed to judgment and execution undisturbed by interference on the part of a court of co-ordinate power. Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Clepper v. State, 4 Tex. 245; Arthur v. Batte, 42 Tex. 160; Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086.

The case made by appellees’ petition is in substance one in which they instituted a suit in a justice court to recover possession of a certain lot forcibly entered upon by mere trespassers and prosecuted the suit to judgment in their favor, whereupon the defendants duly' appealed to the county court as they had the right to do under the statute. Revised Statutes, art. 3956. There is no complaint that such appeal was not in due form or time, or that the county court did not thereby acquire jurisdiction, or that such court is without power to protect its jurisdiction and afford appellees all relief to which they may show themselves entitled. On the contrary, the gravamen of the entire complaint is that the sureties on the appeal bond, which had been duly approved, are insolvent and appellees hence left without remedy for loss of rents pending the appeal. As before stated, the petition affirmatively shows that such appeal was duly pending in the county court at the time the petition under consideration was presented to the district judge; and, if under the most favorable consideration appellees present a case for an injunction at all, the county court alone had jurisdiction to order its issuance. See Lazarus v. S wofford, 15 Tex. Civ. App. 367, 39 S. W. 389; Foust v. Warren, 72 S. W. 404; T. & P. Ry. Co. v. Butler, 52 Tex. Civ. App. 323, 114 S. W. 671.

I conclude that the order of the district judge appealed from should be set aside and the petition therefor dismissed.