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

text:
    WATERS v. STATE.
    (No. 4282.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    On Motion for Rehearing, Feb. 21, 1917.)
    On Motion for Rehearing.
    1. Witnesses <&wkey;263 — Recalling— Repetition oe Testimony.
    In a prosecution for murder, where, after the retirement of the jury, they disagreed as to the testimony of a witness, and wrote out interrogatories under the direction of the court to be asked the witness, the court could only limit the examination or the answer of the witness to the jury’s question as to his former testimony, and could not inhibit the witness from repeating his testimony in reply to the query of the jury, it not being the province of the court to decide whether or not the witness did reply, nor what his reply was before.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 900-903.]
    2. Homicide <&wkey;166(3) — Evidence—Relevancy — Motive.
    In a prosecution'for murder, where the witness who informed defendant of the difficulty which had occurred the night before the homicide between deceased and defendant’s son had seen only the actual encounter and heard the words that immediately preceded it, the admission of the testimony of deceased’s widow, relative to the whole difficulty between her husband and defendant’s son, to the effect that the latter had thumbed his nose at herself and her husband, was irrelevant; such matter not having been communicated to defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 323.]
    3. Homicide <&wkey;>338(2) — Appeal — Prejudicial Error — Evidence.
    Introduction of such testimony held prejudicial to defendant, since it may have left an adverse impression upon the minds of the jury, when, as matter of fact, it did not enter into the motives or control the actions of defendant with reference to the homicide.
    [E'd. Note. — For other cases, see Homicide, Cent. Dig. § 710.]
    4. Criminal Law <&wkey;>657 — Trial — Conduct op Court.
    In a prosecution for murder, where the impeachment of a witness was of great importance to defendant, and the court’s proceedings as to defendant’s impeaching witness were calculated to give the jury the impression that in the opinion of the court the impeaching witness and defendant had been guilty of a serious violation of the rules of the court instructing the witnesses not to talk to any one, the court announcing in a loud tone as the jury came in after retirement for the discussion, “Assess the fine at $25,” the attitude of the court being calculated to induce the jury to discredit the impeaching witness, the court’s conduct was erroneous.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1534.]
    5. Homicide <&wkey;300(7) — Instructions—Self-Defense.
    In a prosecution for murder, where there was evidence by a number of witnesses in support of defendant’s theory that when the shooting began, continuing to its end, deceased had his right hand back of him as if about to draw a weapon, and defendant’s testimony and that of his witnesses was to the effect that defendant’s three shots were fired in rapid succession, while the state’s witnesses asserted that two were fired quickly and one after an interval during which deceased had fallen, defendant was entitled to a charge to the effect that if defendant had the right to fire the first shot the right continued until the danger to his life had ceased, as viewed from his standpoint.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 622.]
    6. Homicide <&wkey;193 — Evidence — Self-Defense.
    In a prosecution for murder, where the evidence was that deceased placed his hand to where he would be expected to have a pistol, the fact that defendant knew deceased was in the habit of carrying a pistol in his auto was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 416.]
    Prendergast, J., dissenting.
    Appeal from District Court, Hemphill County; Frank Willis, Judge.
    Thomas Waters was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Baker & Willis, Hoover & Dial, and H. E. Hoover, all of Canadian, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Under an indictment therefor, appellant was tried for the murder Of Phil Milam, convicted of manslaughter, and assessed the lowest punishment.

As stated by appellant’s attorneys in their oral argument on submission and conceded by their briefs, all material facts as to the relations existing at the time of the killing and for some time prior thereto and of other facts surrounding the parties and the killing were proven and established by uncon-tradicted and uncontroverted testimony, except the facts of the immediate killing. As to the facts of the immediate killing, appellant’s testimony, somewhat supported by some other witnesses, would tend to show that he killed deceased in self-defense. On the other hand, the testimony by the state’s eyewitnesses, by a considerable preponderance, would show that the killing was not done by appellant in self-defense, but would show murder, or at least manslaughter. We may state herein, if necessary, some testimony in discussing the assigned errors.

When the trial began, all the witnesses for both sides were sworn, placed under the rule, and instructed by the court as usual on such occasions. O. E. Eubanks was an important witness for appellant. He and appellant were officers in the same bank, appellant being president and Eubanks cashier. In cross-examining one of the state’s witnesses, appellant asked him if he had not made certain statements to said Eubanks with the view of impeaching him by Eu-banks. After the state introduced its testimony and rested, appellant, among others, introduced said Eubanks, and he testified in effect impeaching said state’s witness. Upon the cross-examination by the state of Eu-banks, it developed that appellant had told Eubanks what said state’s witness had testified, in dear violation of the court’s instructions when placing witnesses under tne rule. The court heard this development and himself began to ask questions, so as to ascertain definitely whether appellant had communicated to Eubanks the testimony given by said state's witnesses. Upon objections by appellant, the court retired the jury, then further investigated this question, and Eu-banks swore that appellant had communicated the testimony of said state’s witnesses to him. Thereupon the court entered a fine of $25 each against appellant and Eubanks, and then directed the jury to be returned, which was done. It seems that, as the jury entered, only two of them first entering merely heard the judge tell the clerk, “Assess his fine at $25.” They did not know to whom the judge referred. None of this shows any reversible error.

The uncontradicted and uncontroverted testimony, by appellant himself and by several witnesses for both sides, showed positively that a state of hostility existed between appellant and deceased, each against the other, which had existed for a considerable length of time up to the very day of the killing, and became worse after they had had a fist fight a few weeks before the killing, and that for a few months or weeks before the killing, appellant on every occasion when he and deceased were about to meet or come into the company of one another in the town where they lived and the killing occurred, went out of his way each time to avoid meeting deceased. Appellant offered to prove, upon cross-examination of one of the state’s witnesses, that he (the witness) had observed this conduct of the appellant on numerous occasions “because the witness was expecting trouble between appellant and deceased on such occasion.” And, further, that he (the witness) noted deceased’s behavior on said occasions “such as indicated to his mind that deceased was seeking an opportunity to meet the appellant with an angry expression on his face.” It seems by appellant’s bill that these conclusions of the witness were what was objected to and sustained by the court. The fiction of the court was correct. Even if incidental to the objection of this testimony of the witness the court may have excluded that witness’ testimony as to the conduct of appellant in avoiding deceaseds It would be immaterial, because, as stated, such facts were, without controversy and clearly, established by the positive testimony of appellant himself and of various other witnesses on both sides, without any contradiction or contest thereof by the state. In fact, it was conclusively established that appellant pursued that course of conduct.

The court’s action in excluding the testimony of a witness, on the state’s objection, as to what time the' mail got into Glazier on the night trains, and what time the people who got their mail at the post| officle usually went for it, was correct. This could not have been material in any way. All the acts of both appellant and deceased on the morning of the killing and what they said, where sought to be proved, were introduced and shown without any objection.

Appellant’s bill complaining of the argument of the district attorney shows no error. We think the district attorney had a right in his argument to make the hypothetical inquiry that he did. Edwards v. State, 75 Tex. Cr. R. 647, 172 S. W. 230, 231. Appellant merely objected to the argument. He requested no charge in writing, or otherwise, that the jury should be instructed to disregard it.

After the jury had been out for some time, it seems they differed as to the testimony of one or two of the witnesses on a certain point, and in effect, as we understand this matter, as shown by all the proceedings with reference thereto, they wanted to have one of the witnesses testify on a point which he had not testified on on the trial. The court followed fully our statute on this subject, which is:

“If the jury disagree as to the statement of any particular witness, they may, upon applying to the court, have such witness again brought upon the stand; and he shall be directed by the judge to detail his testimony to the particular point of disagreement, and no other, and he shall be further instructed to make his statement in the language used in his examination as nearly as he can.” Article 755, C. .0. P.

And. it permitted the witness to tell what he had testified on the point inquired about, but refused to permit any witness at1 that time to testify on any point wherein he had not testified on the trial. We think the action of the court was correct, and that no reversible error is shown by his action in regard thereto. See the decisions noted under said article both in the Revised O. C. P., and under said article in Vernon’s Ann. O. O. P.

The court did not err in refusing to permit the witness Whitaere to testify what appellant said to him when he saw appellant turn off and come into the witness’ store as to why he did so. This applies also to the same character of testimony sought from the witness Gaines. Such testimony 'was hearsay. As stated, appellant proved by himself and several witnesses — and no contest whatever was made thereof by the state — each and every act of his in avoiding the deceased when he was about to meet him. Becker v. State, 190 S. W. 185, from Harris County, not yet officially reported; Giebel v. State, 28 Tex. App. 170, 12 S. W. 591; Bradberry v. State, 22 Tex. App. 273, 2 S. W. 592; Angus v. State, 29 Tex. App. 52, 14 S. W. 443; Harrell v. State, 39 Tex. Cr. R. 204, 45 S. W. 581; Red v. State, 39 Tex. Cr. R. 422, 46 S. W. 408; Hardeman v. State, 61 Tex. Cr. R. 113, 133 S. W. 1056; Underhill on Cr. Ev. (2d Ed.) § 119a.

Appellant sought to have his witness McBride testify that deceased, after the fist fight between appellant and deceased, but some time before the killing, told him deceased always carried a gun in his car. The state objected to this because it was not shown that appellant was apprised of this before the killing, the court at the time remarking, “I do not see the materiality.” The testimony of appellant himself was to the effect that deceased did not go to his car on the occasion when he killed him for the purpose of getting a pistol, or for any other purpose. He started in that direction, but only went a short distance. Appellant knew that he had not on the occasion gotten a pistol from the car, or otherwise. Under the circumstances, said testimony was inadmissible, but even if it had been admissible, the excluding of it would have been immaterial, and presented no. error.

Appellant introduced testimony showing that deceased and appellant’s grown son had a fight the night before the killing at a church in the town and had the witnesses detail the whole affair. After this had been .done, the state introduced Mrs. Milam, who testified Over his objections what was done and said by appellant’s son at the time which brought about and was the cause of the fight. This .was a part of the same transaction, and clearly under the statute and decisions thereunder was admissible. Article 811, C. C. P. The jury could not have understood the occasion for the fight nor the particulars thereof without having the cause thereof stated to them. Appellant himself testified that Ms son had told him all about it the night before and the morning of the killing, and just before the killing he had had Rev. Mr. Beck to again tell Mm the particulars, and it was just after all these facts were known to him that he killed deceased.

The court gave a correct charge, submitting both murder and manslaughter to the jury. As appellant was convicted of manslaughter only and acquitted of murder, murder passed out of the ease. In the charge on manslaughter, the court gave a full and correct charge thereon, to wMch appellant made, and makes, no objection. He, however, asked several special charges on the subject of self-defense. It is unnecessary to copy these. None of them, except the one which the court did give, should have been given. None of his specially requested charges met the requirements as has been many times and uniformly held by this court. Byrd v. State, 69 Tex. Cr. R. 41, 151 S. W. 1068; Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878. But without regard to that, we have considered all of them.

It is always necessary in passing upon any objection to the court’s charge, or those which were refused, to consider the whole charge of the court which was given, and if the whole charge on the subject presents every issue properly, then no error is committed.

On his claimed self-defense, the court in his main charge instructed the jury:

“13. A reasonable apprehension of death or serious bodily injury will excuse a person in the use of all necessary force to protect his life or his person, and it is not necessary that there should be actual danger providing he acts upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such cases 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, or apparent assailant. If from the evidence you believe that at the time the defendant, Thomas Waters, killed the deceased, Phil Milam, the said Phil Milam was making, or was about to make, an attack upon the defendant, Thomas Waters, and from the manner and character of such attack the defendant had a reasonable expectation of fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant shot and killed the deceased, then in such event you will find the defendant not guilty.
“14. In determining whether or not at the time the defendant shot the deceased, Phil Milam, he was in danger of losing his life or sustaining serious bodily injury, and also in determining whether or not from the facts and circumstances in the ease that at the time he shot the deceased he believed that he was in danger of losing his life or sustaining serious bodily injury, and bad a reasonable apprehension of such danger, you ■will view the transaction from the defendant’s standpoint and from no other standpoint, and if you have a reasonable doubt as to such matters you will give the defendant the benefit of such doubt and say by your verdict not guilty.
“15. The defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and if after having heard all of the evidence as applied'to the court’s charge you have reasonable doubt of his guilt you will acquit him.”

And in addition gave this charge requested by appellant in the very language' in which he requested it:

“If you find and believe from the evidence that the defendant, Thomas Waters, killed Phil Mi-lam at the time and place alleged in the indictment, but you further believe that prior thereto said Phil Milam had made threats against the defendant to do him serious bodily harm or injury, and that at the time of the killing said Milam by some act then done manifested an intention to execute the threats so made, or do the defendant some serious bodily injury, or you believe that at the time of the killing said Milam had made or was making an unlawful attack upon the defendant, or had done, or was doing, some act or acts which produced in the defendant’s mind, as viewed from his standpoint, a reasonable apprehension of assault or death or serious bodily injury at the hands of Milam, and that he killed said Milam to protect himself from such danger, or apparent danger, then said killing was justifiable in self-defense, and if you so find or have reasonable doubt as to whether said killing was justifiable in self-defense you will find the defendant not guilty.”

These charges submitted every issue raised by the testimony as to appellant’s claimed self-defense. No others should have been given.

The judgment should be and is ordered affirmed.

On Motion for Rehearing.

DAVIDSON, P. X

Deceased and appellant

had been friends personally and in business relations. Some time, however, prior to the homicide there came a difference between them, minor at first, but more acute and of more magnitude as matters progressed. Deceased was rather aggressive in his hostility to appellant, engaging him at least once in a personal encounter, followed by threats of violence. These threats, or some of them, were communicated to appellant. This caused appellant to avoid contact with deceased, and he would evade or turn away, when the prospect of meeting him occurred. The reputation of both parties was placed in evidence; that of deceased as being a quarrelsome and violent man and one who would execute any threat he might make; that of appellant was good in these different respects. On one occasion appellant had a dif-fieulty with deceased while out driving in his auto.- This occurred in the pasture of the ■deceased, the details of which are unnecessary to mention, but it may be stated that appellant received rather a severe chastisement at the hands of deceased. Deceased and a son of appellant had a difficulty at the church on the night previous to the homicide just as the congregation was separating. In this difficulty the son of appellant sustained a fracture in his arm. This was communicated to appellant by his son that night, and the following morning while en route to his bank he purposed', as usual, to go by the post office to get his mail. As he approached the post office he saw deceased at or near the place and proceeded to turn away, and went to a different part of the town and stopped. Both parties came to town in their autos. Appellant stopped his auto near the pool hall, which was also near a garage. There was a vacant space between the two buildings. Appellant and the witness Beck entered this vacant place, going some distance into it back from the street, and engaged in a conversation in which Beck informed appellant of the difficulty and its details between deceased and appellant’s son on the night previous at the church. While thus engaged deceased passed the open space walking along the sidewalk, and after passing he returned and came in between the buildings where appellant and Beck were. Some words passed between deceased and appellant, and deceased left. Immediately Beck and appellant went out on to the street or sidewalk, and the shooting occurred.

The state’s contention is that the facts and circumstances show or tend to show that deceased upon coming out from the vacant space walked towards the pool hall door, and as he was about to open and enter this door appellant shot him three times. There is a sharp difference as to the position of the parties and the acts and circumstances at this juncture. Illustrative of the state’s version a witness testified that deceased went into the space between the two buildings, and further testified:

“It was only a little while after that until Milam came out of there walking rather fast and' went to the pool hall 'door. He was looking back over his shoulder from the direction whence he came. He got to the pool hall door. At that time Mr. Waters came around the north corner of the pool hall, and when he came around there he shot twice; There were three shots fired— two when he came around. Mr. Milam was standing right at the door at the time the two shots were fired trying to open one or the other. He was trying- to open with one hand or the other the pool hall door when the first shot was fired. When the second shot was fired, he whirled facing Waters. , I couldn’t say which hand Mi-lam was trying' to open the door with. I was watching both men, but he was trying to open the door when the first shot was fired. There was a screen to that door. After two shots were fired Milam fell, and Waters took two steps forward and shot again and walked away. When Mr. Waters fired the third shot, Mr. Milam was kinder resting on his shoulder. I don’t know as he-was clear down,'hut resting On one shoulder.”

Appellant’s contention was that deceased, after emerging from the vacant space, walked along the front street beyond the pool hall door, and as appellant emerged from the ..vacant- space onto the street, deceased was coming back facing Mm, and they met at or near the door of the pool ball, and tbe shooting occurred. His evidence is that deceased came to where he and Beck were talking and had been for 'about 15 or 20 minutes; that Beck was narrating the incidents and circumstances of the difficulty on the previous night between appellant’s son and the deceased, and that while so engaged deceased-entered the vacant space and advanced to within about 10 feet of them; that deceased appeared excited and angry; that appellant jumped up from his sitting position, drew his pistol, and said to deceased, “Milam, don’t come in here;” that Beck about the same time told Milam to get out; that Milam stepped out and disappeared around the corner of the building, and there is evidence that deceased had his hand behind Mm at the time ho approached appellant. Appellant, thinking he was in a trap, walked to the edge of the sidewalk with his pistol in his hand. Upon reaching the sidewalk he saw deceased coming towards him in a threatemng attitude, looking excited, with his right hand behind him. At that time deceased was in front of or near the door of the pool hall. Just at this juncture appellant says:

“I pulled ruy pistol and shot three times just as fast as I could pull the trigger of an automatic pistol.”

Beck testified as to .the location of the men, and that he and appellant were between the buildings in the vacant space, and the deceased passed this space, and then turned and came in towards them; that the appearance of deceased indicated “a scary and vicious iook”; that he called appellant’s name, who said: “Phil, don’t come in here. By God, don’t come in here.” Witness says: “I pushed Waters, and pushed Phil, and told him to get out, run,' or something. There were words being said between them, that I didn’t catch.” His evidence as to the exit of deceased and the movement of appellant then and up.to the shooting is practically as that given by appellant in his testimony. Continuing, this witness testified:

“When I got out to the street, the first time I saw Mr. Milam he was turning round coming back this way, in the act of turning. He had been going in a southern direction, and he came back towards where I was. I can’t state his looks. Pie was coming towards us and looking, you might say, a vicious scary look; wild. He was looking"'toward the north. Mr. Waters was there. It was done so quick you could hax-dly tell where he was looking. I knew he was looking at Waters, though. I belieye his right hand was behind him somewhere. I don’t know what time he placed it there. I can’t tell in just what attitude he was coming. I heard the shots. When the first shot was fired, Milam was right in front of the pool hall door. He had advanced to about in front of the pool hall door. Mr. Waters fired three "shots at. him in front of the pool hall door. He got to the door — I don’t know at what time — and his right hand was behind him. He didn’t advance very much because the shots were so quick a man couldn’t advance. I didn’t have time to observe any change in the deceased’s attitude before the shooting. At the time the first shot was fired I looked at both — just threw my glance — it was done so quick. As well as I can say, the first shot took effect about the left nipple and he kinder — I don’t know what — then he grabbed the screen door, but he turned around and kept gradually sinking. While the shooting was going on, some time during the shooting, Milam grabbed the screen door. He grabbed the screen door right along about the first shot. After the first shot was fired, he kinder dwindled down.”

After the retirement of the jury they disagreed as to the testimony of Beck and wrote out interrogatories under the direction of the court to be asked Beck. One of the interrogatories is as follows:

“What did you do when you saw the deceased, and from the deceased’s attitude what did you think he was about to do?”

The bill of exceptions as drawn by appellant’s counsel states that the court stated in the presence of the jury that tMs matter was not testified to by the witness, and he would not permit that question to be answered. Appellant excepted, claiming that the witness had- testified on the subject covered by the .inquiry, and that if permitted to answer the question, he would have stated that Ms former testimony was that when he first arrived on the street in the space between the buildings he saw deceased advancing with his right hand behind him looking straight at the appellant, in an angry and threatemng manner, and that he jumped east so as to get out of the line of range between the defendant and the deceased, for he believed that he w,as in danger as he expected the deceased to fire at any time. The court qualifies this bill, stating that he had had the entire proceedings transcribed by the stenographer and made a part of the bill, and reference to this stenographic report fails to disclose that the court made any statement to the jury to the effect that the subject inquired about had not been touched in the witness’ testimony, and fails to disclose that the court refused to ask the quoted question propounded by the jury. All that it says is that several of the questions are new matter. “He didn’t testify, and I can’t ask about those matters.” TMs bill leaves the matter in rather a confused condition. If the witness testified as was expected he would as to the repetition of his former testimony, it was important and the jury should have heard it. The court could not decide this question. He was not asked to state what the witness had not sworn. The witness was asked, and it was the province of the witness, to state what his former testimony was. The court could only limit the examination or the answer of the witness to the question as to his former statements. The witness could not testify to new matter, and thé court could not authorize such testi-' mony, but the court could .not inhibit the witness from repeating Ms testimony in reply to the query of the jury. The witness ought to have been permitted to state whether he so testified before, and if he did, then the jury was entitled to hear it. This much is said in regard to this matter. It may not occur upon another trial. It is not the province of the court to decide whether or not he did nor what his reply was before.

It also appears from the testimony that Beck had only seen part of the difficulty which occurred at the church the night prior to the homicide between deceased and appellant’s son. He saw the actual encounter and heard the words that immediately preceded it, all of which occurred after the meeting was dismissed or adjourned and the congregation was leaving. This witness, however, did not see anything that occurred before that time, or which may have been the inducing cause of the difficulty. He informed appellant as to the part of the difficulty which he witnessed, and appellant’s son also related that part to him substantially as did Beck. The state introduced the widow of deceased, and she testified that before the meeting was dismissed she and her husband were sitting in church a bench or so in front of appellant’s son. She stated that her husband nudged her and she looked around, and that the young man “twiddled her and her husband by placing his right hand against his nose and wiggling his fingers at them.” This part of the transaction was not communicated to appellant so far as the evidence discloses, and appellant insists that inasmuch as the transaction between the deceased and appellant’s son only' became material and admissible on the issue of motive and giving the jury knowledge of the information with reference to the subject which appellant had at the time of the homicide, and may have affected him in his action during the difficulty, or operated on his mind in regard to the difficulty which resulted in the killing, and, this being true, that part of the transaction not having been communicated to him was irrelevant, and that inasmuch as the conduct of appellant’s son detailed by Mrs. Milam was an insult calculated to arouse the resentment of the deceased, its introduction against the appellant was prejudicial to his case. In this matter we think appellant is correct. It could not have operated upon the mind of appellant unless he was aware of this movement on the part of his son, and it may have left a decided impression adversely to appellant upon the minds of the jury, when, as a matter of fact, it did not enter into the motives or control the actions of appellant with reference to the homicide. We think this was an important matter, and, being unknown to appellant, was of such a nature as requires a reversal of the judgment.

Tony Nobles testified for the state: That at the time of the homicide he was in the pool hall and saw the shooting and the position of the parties through one of the windows, and, substantially, that at the time the deceased was shot he was going south and approaching the pool hall door, and that about the time he reached the pool hall door the appellant shot him twice, and after deceased fell he was lying a little bit on his back and side with his right arm under him, and he raised up just a little and said, “Oh! don’t, Mr. Waters; please don’t shoot any more,” and groaned. That after that Mr. Waters shot him again. That Mr. Milam was lying on his right shoulder or right side, and that appellant came within about eight or nine feet from Milam before he fired the last shot. While this witness was on the stand appellant laid a predicate to impeach him by asking him, in substance, if it was not a fact that he had proposed to the witness Eubanks that he would not testify, but would leave the country if he was paid a sum of money. Nobles denied this, and appellant called Eu-banks, whose testimony impeached that of Nobles. On cross-examination the prosecuting attorney asked Eubanks if he knew what Nobles had testified, and he said, “No,” but that he had heard that he denied making the statement. Just here the trial judge took up the inquiry and reprimanded the witness for disobedience of the rule, which had been invoked. This reprimand was given and the questions asked by the judge while he, as described in the bill, was commanding, flushed, angry, and threatening; and in response to the court’s inquiry, the witness said that he believed Mr. Waters, the appellant, told him that the witness Nobles had denied it. The court retired the jury and conducted a further inquiry into- the transaction relating to the violation of the rules of the court. So far as the record discloses, no inquiry was made of the appellant, but the inquiries were addressed to the witness Eu-banks, and after some time had been spent in the investigation the jury was called back, and as they entered the courtroom the court in their hearing said, “Assess his fine at $25.” All this occurred over objection of appellant.

This bill is not approved by the court, but was proved up by bystander's. The affidavits of two of the jurors were taken, stating that as the jury returned to the courtroom in the custody of the officer, the court said in their hearing in a loud and commanding voice, “Assess his fine at $25”; that they did not know who the fine was against, but supposed it was against Eubanks and defendant Waters, and that in their deliberations the matter was discussed to some extent.

The court prepared himself a bill which, substantially, shows that when it developed that the witness Eubanks had conversed with some one about the testimony of Nobles he stopped the examination and conferred with the parties about the disobedience to the rule of the court and learned from the witness that the party with whom he had conferred was the appellant; he then retired the jury and assessed a fine against the witness, and that while counsel for appellant was persisting in arguing against the ruling of the court, the jury was brought in, and as they were coming in the court announced again, “Assess the fine at $25.” This bill as prepared by the court makes no reference to the manner of the court in the conduct of the proceedings. We are of opinion that the record discloses a state of facts which were not authorized by the procedure, and calculated to prejudice appellant’s cause. The witness Eubanks had impeached Nobles, who had given damaging testimony against appellant. This was controverted by appellant and his witnesses. The impeachment was of great importance to appellant, and the proceedings were calculated to give the jury the impression that in the opinion of the court the witness and appellant had been guilty of a serious violation of the rules of the court instructing the witnesses not to talk to any one, and this attitude of the court was calculated to induce the jury to discredit appellant’s witness Eubanks. It was calculated also to injure appellant for disobedience of the court’s order in regard to talking with witnesses under the rule. The court’s conduct in this matter in the presence of the jury, we think, was not correct, and was an invasion of the appellant’s right to have the judge refrain from' any expression or conduct which was calculated to impress the jury to the disadvantage of appellant’s cause, or to discredit his witness with the jury. This matter was fully discussed and the authorities cited, in Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 960. See, also, Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1160; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558, and quite a number of cases collated by Mr. Branch in his work on Criminal Law, § 363. We think this was of such grave importance that a reversal should be awarded. The matter should have been handled so the jury .would not have been informed of what occurred.

The charge of the court is complained of in several respects. Speaking generally, the court’s charge enunciated the principles, fairly well, but still there is that about the, charge which shows that it was given in rather a negative than an affirmative form: with regard to the question of self-defense as presented in its various forms. The ap-‘ pellant asked a special charge somewhat inartistic, yet presented a serious question in the case, which was not given' by the court. This charge, in substance, was to the effect, that appellant had the right to have the jury' informed in the charge on self-defense that if he had the right to fire the first shot, then that right continued until the danger to his life had ceased ,as viewed from his standpoint of the .difficulty. There was evidence by a number of witnesses in support .of appellant’s theory that when the-shooting began and continued to its end, that deceased had his right hand behind him in a1 manner calculated to impress appellant, in connection with the character, .of deceased, his .animosity towards him, his threats and previous conduct, that he was about to draw a weapon to kill or injure him. Appellant’s testimony, and that of his witnesses, was to the effect that the three shots were fired in rapid succession. The state’s witnesses assert that two of the shots were fired in rapid succession, and that one of them was fired after an interval during which the deceased had fallen to the sidewalk. In this state of the case we are of opinion that appellant was entitled to a charge embodying the principles of law above mentioned, and in support of this view of the case we cite Stanley v. State, 62 Tex. Cr. R. 306, 137 S. W. 703, and Powers v. State, 69 Tex. Cr. R. 214, 152 S. W. 909, to the effect that while it was somewhat inaccurate, it was sufficient to require the court to submit in an accurate form the proposition of law involved, and under the authorities of Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179, Smith v. State, 57 Tex. Cr. R. 455, 123 S. W. 698, Jones v. State, 44 Tex. Cr. R. 405, 71 S. W. 962, Sargent v. State, 35 Tex. Cr. R. 325, 33 S. W. 364, Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 433, and Woodward v. State, 54 Tex. Cr. R. 89, 111 S. W. 941, we are of opinion the trial court was in error in failing to give this phase of the law.

There is another proposition that might be mentioned so that if it occurs upon another trial there may be no error in regard to the admission of the testimony. The question came as to whether or not deceased was in the habit of carrying his pistol in his auto. The rule may be accurately stated, while there has been no qualification by the court in the opinions, that where appellant knew deceased carried a pistol and exhibited it, it was admissible, and that where he knew or was aware of the fact he was in the habit of carrying a pistol, this would be admissible in a case of apparent danger, where the facts indicated that deceased placed his hand to where he would be expected to have a pistol. While the record is not as clear as it might be, yet if upon another trial appellant offers this character of testimony, and it shows or tends to show his knowledge of the fact that deceased carried a pistol, either in his auto or about his person, under the circumstances of this case we think this testimony ought to go to the jury. The fact that he knew he carried a pistol, or was in the habit of carrying it, brings the matter directly to his notice. That he was in the habit of carrying a pistol, or such was his reputation, appellant might prove. The object of proving general reputation in matters of this sort is to convey notice to the party to be affected by reason of the general reputation; as it is the general reputation, it is, therefore, supposed that everybody knew the fact as an .inference from such general reputation. Of course, if he knew it he had a right to prove it if it- become a material matter or of any service to -him in his defense. -Knowledge on the part of the accused of the fact is the purpose of all this sort of testimony. How he obtained that knowledge would seem not to be of such a material character. If he was aware of it prior to the homicide and his knowledge of that entered into the trial of his case, or induced him to act as he did, it would be a relevant fact for the jury to consider. It may have been a patent reason for his action in shooting. This is so with reference to all this character of testimony, whether it refers to the carrying of arms by deceased and appellant’s knowledge of it, or whether he knew it directly. The same rule covers the question of threats. If appellant knew the threats he could act and would be supposed to have that in view, at least it would be a relevant fact for the jury, or being informed that deceased had made the threats and believed it, he could still act, that is in a case where apparent danger arises from some demonstration or overt act on the part of the deceased to execute his threats. We call attention to this so that upon another trial if this matter comes in such shape as to bring notice to appellant, or probably did, the evidence should be admitted. In this particular case the relevancy of the testimony might be apparent, because on the morning of the trouble,- and just preceding it, which was the morning following the trouble in which deceased had broken the arm of appellant’s son by throwing some wire nippers or a monkey wrench at him, and the fact that deceased had gone to the post office, realizing the habit and custom of appellant to to go to the post office in the morning to get his mail, and there had taken bis stand and was waiting for him, as it may have appeared, and the facts indicated it could have appeared, to appellant, and then following him, almost immediately into the vacant space under the conditions and circumstances already stated, it might have left the impression upon the mind of appellant or induced him to believe that deceased had brought his pistol with him from the auto, especially in view of the fact when he entered the vacant space where appellant .and Beck were he had his hand behind him, and when appellant confronted him on the street immediately afterwards he still had his hand behind him, and it was a fact or circumstance to consider as to whether or not he armed himself with a pistol from the auto. As a matter of fact, it seems to have been developed that after the shooting deceased did not have a pistol on his person, but he did have the wire nippers, etc., which it seems from the testimony he was in the habit of using on people whom he engaged in broils and fights. So upon another trial if appellant had notice of the fact or was informed that deceased was in the habit of •carrying his pistol in his car, under the circumstances of this case that fact ought to go to the jury. That, of course, will develop upon another trial under the facts and circumstances.

As the case is presented,,we are of opinion the motion for rehearing should be granted, the affirmance set side, and the judgment reversed, and the cause remanded.

PRENDERGAST, J.

This cause, and

every question raised in it, was, without doubt, correctly decided in the original opinion herein by the full court as then constituted. The motion for -rehearing should be overruled. I dissent from the granting of said motion, and the reversal. The case should, under the law and facts, be affirmed; not reversed.
      &wkey;}For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    GOODMAN v. W. S. PECK & CO.
    (No. 1115.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1917.
    Rehearing Denied March 7, 1917.)
    1. Appeal and Ebeor <&wkey;265(l) — ResebvaTION OF GROUNDS OF REVIEW — EXCEPTION to Findings of Fact — Rule of Coubt — Statute.
    Rule 101 for the Courts of Civil Appeals, as amended June 25, 1913, provides that assignments of error or cross-assignments relating to any ruling or action of the trial court or trial judge which occur subsequently to the rendition of a final judgment in the case may be incorporated in the brief filed in the Court of Appeals without being included in the transcript. Held, that the object of the rule is to permit assignments of error to the action of the court after final judgment, and the findings of fact filed by the court within ten days after adjournment under Rev. St. art. 2075, can be assailed on appeal on the ground that the evidence will not support the findings, without the necessity of an exception thereto being first filed, though there was no motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1536, 1538, 1544r-1551.]
    2. Alteeation of Instbuments <@=»11(2) — Spoliation of Contbact by Stbangeb.
    A change in a contract of guaranty, effected by a stranger to the instrument, therefore only a spoliation, as contrasted with an alteration, did not defeat recovery upon the contract as actually made.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 61-66, 68-71.]
    3. Alteeation of Instbuments &wkey;>29 — Change by Defendant — Sufficiency of Evidence.
    In suit on a contract of guaranty, evidence held to justify the trial court’s finding that a change in the contract was in defendant’s handwriting.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 259-263.]
    4. Stipulations c&wkey;14(l) — Construction — Amount of Indebtedness — Sufficiency of Evidence.
    In an action on a contract of guaranty, the statement of facts, reciting that the pleadings were read, and that it was agreed by the parties that the amount alleged in plaintiff’s petition was due by the debtor, was sufficient to place before the court the invoices sued on; and the amount shown, with their dates, together with the contract of guaranty, was sufficient to warrant the trial court’s finding for the amount, since the purpose of the recital of the statement of facts that the pleadings were read must have been to show what was agreed to and the amount for which judgment should be rendered, all being submitted to the court as evidence under the agreement.
    [Ed. Note. — Eor other cases, see Stipulations, Cent. Dig. §§ 24, 28.]
    6. Appeal and Error &wkey;>932(l) — Presump-txons Favoring Court Below.
    On appeal any uncertainty as to the proper amount of recovery should be resolved in .favor of the judgment of the court below.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3782.]
    Appeal from District Court, Oldham County ; D. B. Hill, Judge.
    Suit by W. S. Peck & Co. against J. R. Goodman. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Reeder & Dooley, of Amarillo, for appellant. W. E. Gee, of Amarillo, for appellee.
   HUFF, C. J.

The appellee, W. S. Peek & Co., instituted this suit against J. R. Goodman, on a guaranty contract, for goods sold T. L. Lipscomb, who was engaged in a mercantile business, alleging that the goods were sold Lipscomb in reliance upon the guaranty contract, on various dates, to wit, August 19, 1912, September 16, 1912, October 7, 1912, and November 7, 1912, aggregating the sum of $1,701.75, with a credit of $71.46, made December 31, 1913; that on the 13th day of May, 1913, ,T. L. Lipscomb was adjudged a bankrupt, and received his discharge in bankruptcy, and thereby was released from liability on the indebtedness for which the suit was brought. The appellant answered by general denial and non est factum as to the guaranty contract. The appellee replied by supplemental petition that, if there was any change in the contract of guaranty, it was immaterial, and was consented to by Goodman, and made for the sole purpose of making the contract speak the truth, setting out the circumstances under which the contract was made and those leading up to the alteration and how effected. The trial court filed findings of fact and conclusions of law as follows:

“W. S. Peck & Company v. J. R. Goodman. No. 170. In the District Court of Oldham County, Texas, August Term, 1916.
“In compliance with the request of the plaintiffs in the above entitled and numbered cause that the court file conclusions of facts and law in said cause, I, D. B.' Hill, Judge of the District Court in and for Oldham County, Texas, situated in the Sixty-Ninth judicial district of Texas, do hereby certify that my conclusions of fact and law are as follows, to wit:
“(Explanation. — The words underscored in the contract and portion of contract hereinafter set out were written with pen and ink in the contract as introduced in evidence before me upon the trial of said cause.)
“Conclusions of Fact.
“First. I find that on the 14th day of March, 1912, the defendant, J. R. Goodman, signed the following contract, to wit:
“ ‘This guaranty, made this the 14th day of March, 1912, between T. L. Lipscomb of Potter- county, of the state of Texas, party of the first part, and W. S. Peck & Co., a copartnership composed of Wilber S. Peck and Herbert R. Peck, and Wilber S. Peck, Jr., all of the city of Syracuse, N. Y., party of the second part. Witnesseth, that whereas T. L. Lipscomb of Amarillo, county of Potter, state of 'Pecoas, engaged in the clothing business, is desirous of purchasing goods, wares and merchandise from the party of the second part; and whereas, to induce said sale or sales by said party of the second part to said T. L. Lipscomb, and as part of the consideration of making such sales, the said party of the first part has agreed to guaranty to the said party of the second part as hereinafter set forth: Now therefore, in consideration of the premises and one dollar ($1.06) in hand paid to said party of the first part, by said party of the second part, the receipt where of is hereby acknowledged, the said party of the first part does hereby guaranty to said party of the second part the payment of the price of all merchandise sold within three years from the date of this instrument including orders now on hand for future delivery by the said party of the second part to said T. L. Lipscomb of Amarillo, Texas, not exceeding however the sum of $3,000.00 five thousand dollars, at any one time, and further said party of the first part guarantees the payment of any liability or indebtedness arising from such sale or sales during said period, whether on open account or on negotiable or nonnegotiable. instruments or renewals thereof with accrued interest, on which said T. L. Lipscomb is or may be directly or contingently liable, the renewal or extension of the time of payment of any of the aforesaid liabilities or indebtedness is hereby agreed to as is also any release, addition to or change of security. The application of any payments made to said party of the second part by said T. L. Lipscomb or for his benefit is hereby confirmed, as is also any and all accounts of said party of the second part in relation to such liability or indebtedness.
“ ‘All notices and demands whatsoever are hereby waived by the said party of the first part.
“ ‘This guaranty is a continuing, one, binding said party of the first part, his heirs, executors, administrators and assigns; and in case of the death of the said party of the first part, this guaranty shall cover all transactions made previous to the time when the said party of the second part shall be actually informed thereof; nor shall the dissolution of the said second part, nor change of partners, nor change by incorporation or otherwise, affect this guaranty, which together with all liability thereunder shall inure to the benefit of the said party of the second part, its successors and assigns.
“ ‘In witness whereof, the said parties have hereunto set their hands and seals the day and year above written. T. L. Lipscomb.
“ ‘J. R. Goodman.
“ ‘W. S. Peck & Co.
“ ‘Witness: Don A. Crossett.’
“Second: I find that, upon the execution of said contract, same was mailed by T. L. Lipscomb to the plaintiffs and reached them by due course of mail.
“Third. I find that, upon receipt thereof by the plaintiffs, they returned same to T. L. Lipscomb, with instructions to him to have J. R. Goodman change same so as to insert the word ‘J. R. Goodman’ where the name ‘T. L. Lipscomb’ first appears in said contract.
“Fourth. I find that said contract was after-wards returned to the plaintiffs by due course of mail; and, when so received by them the second time, the first paragraph of said contract was changed so as to read as follows, to wit: ‘This guaranty, made this the ll/th day of March, 1912,- between J. R. Q-oodman of Old-ham county, of the state of Texas, party of the first part, and W. Si'Peek & Co., a copartnership, composed of Wilber S. Peck and Herbert R. Peck, and Wilber S. Peck, Jr., all of the city of Syracuse, N. Y., party of the second part.’
“Fifth. I find that no changes were made in said contract other than those appearing in the paragraph above quoted, the word, ‘T. L. Lipscomb’ being erased with pen and ink and the word ‘J. R. Goodman’ being written therein, likewise the word ‘Potter’ being erased and the word ‘Oldham’ written therein, the words ‘T. L. Lipscomb’ and ‘Oldham’ having a line run through them with pen and ink and the words ‘J. R. Goodman’ and ‘Oldham’ being written with pen and ink. _
_ “Sixth. I further find that the change in said contract was made by J. R. Goodman, the defendant in this cause, and that the word ‘J. R. Goodman’ in said paragraph showing said change was in the handwriting of the said J. R. Goodman, defendant.
“Seventh. I further find that, after the execution and delivery of said contract of guaranty to the plaintiffs, to wit, from August 19, 1912, to November 7, 1912, the plaintiffs sold and delivered goods to T. L. Lipscomb, there being various articles of goods, wares, and merchandise so sold, all on open account, aggregating the sum of $1,701.75.
“Eighth. I further find that T. L. Lipscomb was adjudged a bankrupt in the year 1913, and afterwards received his discharge in bankruptcy.
“Ninth. I find that the amount due the plaintiffs on the indebtedness incurred by T. L. Lipscomb from August 19, 1912, to November 7, 1912, after applying all credits thereon, including dividends received by plaintiffs from the estate of T. L. Lipscomb, through the bankruptcy court, is the sum of $1,630.29, which amount remains unpaid at this time.
“Tenth. I further find that said sum of $1,-630.29 was due on February 2, 1913.
“Conclusions of Law.
“Having found as a fact that the defendant made the change in the contract above set out, the changed contract became that of the defendant, and he is bound by its terms; and his plea of non est factum is untrue. The goods purchased by T. L. Lipscomb from the plaintiffs having been purchased after the execution of the said contract and in faith of and relying upon and on thereof by the defendant and during the period of time the same was in force, and the indebtedness being still unpaid, said Lipscomb having received his discharge in bankruptcy, the defendant is obligated to pay the plaintiffs the sum of $1,630.29, with interest thereon from February 2, 1913, at 6 per cent, per annum. D. B. Hill,
“District Judge, 69th Judicial Dist. of Texas.”

The assignments in this case are to the effect that the findings of fact by the. trial court are not supported by the evidence. The appellees object to these assignments and present the proposition:

“In order to attack the findings of fact by the trial court, there being no motion for new trial, it was necessary for the appellant to file exceptions to the findings before .he could assign error on the ground that the findings are riot supported by the evidence.”

The trial court adjourned on the 9th day of August, and findings were not filed until the 18th day of August. The ’ appellant excepted to the judgment of the trial court, which is noted in the judgment entry. There is also a statement of facts brought up to’ this court in the record. Counsel for both appellant and appellees apparently contend there is a conflict of authority in this state on the proposition presented. We do not deem it necessary to go into a discussion of this matter or review the several cases cited. Under article 2075, R. O. S., the trial judge has ten days after adjournment of his court to file findings of fact and conclusions of law. It is said in Bond v. Garrison, 59 Tex. Civ. App. 628, 127 S. W. on page 844:

“The statute makes no provision for the presentation of these conclusions to the parties. It would be absurd to require either party to except in advance of the preparation and filing of the conclusions. It has been held that exceptions to the judgment when rendered is sufficient to support objections to the conclusions filed by the court.”

Rule 101 for the Courts of Civil Appeals, as amended June 25, 1913, provides:

“That assignments of error or cross-assignments relating to any ruling or action of the trial court, or trial judge, which occur subsequently to the rendition of a final judgment in ■the case, may be incorporated in the brief filed in the Court of Appeals, without being included in the transcript.”

The object of the rule would appear to permit assignments of error to the action of the court after final judgment, and it occurs to us the findings of fact filed after adjournment could be assailed on the ground that the evidence will not support the conclusions so filed without the necessity of an exception thereto being first filed. Moody v. Bonham, 178 S. W. 1020. It seems to us that the inference to be drawn from the case of Craver v. Greer (Sup.) 179 S. W. 862, by the Supreme Court, is that, in order to attack the judgment of the trial court, whether because not supported by the law or facts, and to present assignments of error, it is not necessary to file special exceptions to the findings or file a motion for new trial, since the judgment is wholly the act of the court, rendered upon consideration of the evidence by the trial judge, while, if tried before a jury the error must be called to the attention of the trial court to entitle to a revision on appeal; also, Wilkerson v. Stasney, 179 S. W. 669. We substantially so held in Walsh v. Methodist Church, 173 S. W. 241 (however, a writ of error has been granted in the latter case).

Assignments from 1 to 11 present, in different form, that the evidence wholly failed to show that the guaranty contract was executed by J. R.. Goodman, and to show that any of the indebtedness from Lipscomb to appellee was for goods sold under the terms and within the purview of the guaranty contract sued upon and in evidence. On the first proposition it will be noted the court found that the contract was made by J. R. Goodman, and that the words “J. R. Goodman” in the paragraph showing the change in the contract was in the handwriting of Goodman, and that, Goodman having himself made the change, the contract as changed became his, and that he was bound by its terms. The testimony of Goodman is that the interlineation was not his signature. T. L. Lipscomb testified he did not make the change. W. S. Peek & Co., show by the evidence that they observed the mistake and returned the contract of Lipscomb to procure Goodman to make the change. Lipscomb returned it to appellee with the change made as requested. The letter of appellee to Lipscomb requested the change. According to the sworn statement of these witnesses, and the inference which appellant would draw from Goodman’s testimony, no party to the instrument made the alteration. It would result, therefore, it was not an alteration within the meaning of that term. It was a change, effected by a stranger to the instrument, and was therefore only a spoliation, which would not defeat a recovery upon the contract as made. It is undisputed that Goodman signed it as a guarantor, and that appellees accepted it as a guaranty contract. On its face it shows it was a guaranty of any indebtedness within its terms made by Lipscomb with appellees. All parties signed it, and were therefore liable for the indebtedness which accrued under its terms. We think there is evidence supporting the finding of the court. The contract is dated the 14th day of March, 1912. On the 17th day of April, 1913, Messrs. Reed-er & Dooley, by C. B. Reeder, attorneys in this case, wrote to W. S. Peck & Co.:

“Tour favor of the 9th instant to J. R. Goodman, Wildorado, Texas, relative to amount due you by T. L. Lipscomb, is before us for attention and reply. While T. L. Lipscomb has not been able to meet his bills promptly as they became due he is solvent and will be able to pay each of his creditors without loss to any, and that within a reasonable time. Mr. J. R. Goodman’s guaranty to you makes you secure, but of course the guaranty is not to be realized upon until you fail to get your money out of T. L. Lipscomb.”

Reeder and Goodman testified substantially that Reeder was not representing Goodman at that time in any business matter. Reeder says that at that time he was representing Lipscomb, which was just before he was thrown into bankruptcy, and that he was handling his business. They both testified they had no recollection of the letter from appellee to Goodman, referred to in Reeder’s letter. Reeder says he does not think he would have made a statement in that letter that was not absolutely correct. The letter itself shows he was answering a letter ap-pellees had written Goodman, and that that letter was before him for “attention and reply.” It was certainly calculated to induce appellees to believe that it came from Goodman, or was written by his authority. We believe the court was justified in finding that it was written by the authority of Goodman. In this letter he admits his liability on the guaranty after the assets of Lipscomb were exhausted. This was about a year after the alleged alteration. Goodman, in explaining why he first signed the instrument as originally drawn, says he did so because he saw it did not bind him or anybody else. If he caused Mr. Reeder to answer the letter from appellees, he then knew of the change because he recognized it did bind him on the guaranty. From the face of the letter the court was authorized to find it was a reply for Goodman. No one else had the right to deliver his letter for attention and reply to Reeder, so far as this record shows.

It is admitted by Goodman that he signed the guaranty contract and that his signature is attached to it. The duplicate which he kept was also before the court, which he admits he signed. Both these instruments which he signed were béfore the court, with his admitted signature, and the record shows the signatures; together with the interlineation of Goodman’s name, were examined and testified about before the court. In one place Goodman testified:

“The name, J. R. Goodman (which was the name interlined), in the second line of it, seems to be similar to my signature; don’t look much like this one (referring to the one which was signed at the bottom of the contract). I don’t think that is my signature in smaller letters interlined in the contract.”

Again he testified:

“I don’t think that is my signature in the second line of the instrument. I said a while ago that it looked something like it.”

The effect of appellee’s testimony as to writing the interlineation is that he did not authorize appellee or any one else to write his name is the instrument.' After he first signed it he did not think he saw it any more, and did not remember that he ever saw it any more. The court, after hearing this evidence, found Goodman did write his name into the instrument. It is asserted that a comparison of signatures alone is not sufficient to sustain the finding of the court. The most restrictive rule of the common law, under the standard of comparison used in this case, was satisfied. The case of Talbot v. Dillard, 22 Tex. Civ. App. 360, 54 S. W. 406, is relied upon by appellant. In that case the signature, admittedly genuine, was not on papers in any way connected with the subject-matter of the litigation then in hand. The court there said:

“Had they been competent for other purposes in the case, and the signatures admitted to be genuine, the comparison by the court or jury trying the case might properly have been made and due import given to it as evidence.”

Here the admitted signatures were directly connected with the subject-matter of the case, and the party writing the signature admitted the interlined name “seemed to be similar to my signature.” This was a Comparison by the one who ought to know his signature, and this testimony as given before the court, with his own inspection, it appears to us ought to support the findings under the most rigid rule with reference to comparison. R. C. L. §§ 181, 182, Evidence, vol. 10.

This evidence, under the circumstances, justified the court in his finding. By the process of elimination it is shown with reasonable certainty that Goodman did the writing. Appellee returned the contract to Lipscomb to have Goodman make the very correction that was made. The letter transmitted with the instrument shows that fact. It was returned with the correction, as requested. Lipscomb testified he did not make the change. It was made, however, and the writing and the admitted signature to the instrument appellant admits are similar and looked something like his signature. There is no evidence to show that it looked like Lipscomb’s writing, or any one’s else writing. Goodman does not positively testify he did not write the interlineation. He simply testified he did not authorize appellee or any one else to write it. He trie? to show that it is not his signature by circumstances. He “don’t think” and “don’t remember” that he saw it any more after he first signed it. Again, he says, “I don’t think that is my signature.” If he never wrote it he knew it was not his writing. He may have written it so as not to be his signature, and yet he may have written it. He may have written it so it only resembled his signature, and yet not be his signature in the sense that it was the usual signature used by him. He nowhere positively swears it was not his writing, and that he did not write it. Some one did, and the circumstances point to him as the person. We think the court’s finding has evidence to sustain it.

The court’s finding against appellant the amount adjudged is assailed because there is no evidence showing that it was such indebtedness on the part of Lipscomb as would fall under the guaranty. The contract signed by Goodman is dated March 14, 1912, by which he guaranteed the payment of the purchase price of all goods sold by appellees to Lipscomb for a period of three years from that date. The appellees attached to their petition and ihade a part thereof the invoices of sales which were of date August 19, 1912; September 16, 1912; October 7,1912; November 7, 1912 — total $1,701.75; and alleged a credit of $71.46, leaving a balance due, which was sued for, of $1,630.20. It is shown by appellee that all shipments made after March 14, 1912, were made in reliance upon the contract of guaranty in this case. Lipscomb testified he was indebted to appellee for goods in about the sum of $1,700. The statement of facts agreed to and approved show that after all preliminary matters had been disposed of by the court, and the pleadings of both parties read, the following evidence was admitted : Upon the trial before the court the record shows the following agreement was made by the parties:

“That T. L. Lipscomb owed W. S. Peck & Co. the amount sued for in plaintiff’s petition, after all dividends were paid, and he was released from bankruptcy.”

It appears that appellant contends that because Lipscomb, in testifying about the circumstances which induced the giving of the guaranty contract, stated that the indebtedness prior thereto was reduced to notes, this might have been included in the court’s judgment and therefore the contract, by its terms, would not cover such items. It is manifest from the pleadings no such item as notes given before the contract were sued for. It was for goods shown by the invoices attached to the pleadings, all showing that they were for goods sold after the contract, and therefore falling under its terms. When the amount of the several invoices are totaled, and the credit pleaded is taken from that amount, the remainder is the amount found by the court, plus the interest. The agreement in open court was that Lipscomb owed appellee the amount sued for in the petition, and not some other amount, or item. This is evidently an admission of thé cause of action as sued for. The real question before the trial court, as is apparent from the record, was on the issue raised by the pleading of non est factum. The statement of facts reciting that the pleadings were read, and that it was agreed by the parties that the amount in plaintiff’s petition was due by Lipscomb, we believe was sufficient to place before the court the invoices sued on, and the amount shown, with their dates, together with the contract, was sufficient to warrant the finding of the trial court. The purpose of reciting that the pleadings were read by the statement of facts must have been for the purpose of showing what was agreed to, and the amount for which judgment should be rendered. This was all submitted to the court as evidence under the agreement. If we should hold there is any uncertainty it should be resolved in favor of the judgment of the court. Byers v. Thacker, 42 Tex. Civ. App. 492, 94 S. W. 138.

We believe the case should be affirmed; and it is so ordered. Affirmed.
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author: FLY, C. J.

text:
    LINNARTZ v. LAWRIE.
    (No. 5812.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.)
    1. Fraud <&wkey;99(3) — Damages for Misrepresentations — Measure.
    In an action by the purchaser of land for damages for misrepresentations that there was a good well of water located on the land, the measure of damages is the difference in the amount the buyer paid for the land and its true value.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 62.]
    2. Judgment <&wkey;18(2) Pleading To gup-port.
    In an action by the buyer of land for damages by the seller’s misrepresentation that there was a good well thereon, where the pleadings failed to indicate what the buyer paid for the land, or that it was of less value'than the sum he paid, there were no allegations on which the court could invoke the proper measure of damages ixi rendering judgment.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 36.]

      3. Fraud <&wkey;59(l) — Misrepresentations as to ■ Well — Measure oe Damage.
    • Where the seller of' land misrepresented that there was a good well thereon, he was not liable to the buyer for the amount paid out by the latter in digging wells.
    [Ed. Note. — Eor other cases, see Fraud, Cent. Dig. § 60.]
    Error from Bexar Comity Court for Civil Cases; John H. Clark, Judge.
    Suit by A Lawrie against W. G. Linnartz. To review a judgment for plaintiff, defendant brings error.
    Judgment reversed, and cause remanded.
    Carlos Bee and O. C. Todd, both of San Antonio, for plaintiff in error. Hugh R. Robertson and Claude J. Carter, both of San Antonio, for defendant in error.
   FLY, C. J.

This is a suit for damages instituted by defendant in error which he claims to have accrued by reason of the false representations of plaintiff in error to the effect that there was a good well of water on a certain tract of land whereby he was induced to buy said land. Judgment by default was rendered against plaintiff in error in the sum of $508.40.

The allegations of the petition are as follows:

“Plaintiff avers: That heretofore, to wit, during the month of August, 1913, plaintiff purchased from defendant 100 acres of land near San Antonio, Tex., through William George, agent and representative of the defendant. That on or about said time defendant and his agent represented to plaintiff that there was a good well of water located on said land, and that same was sufficient to supply him with water for household and other necessary purposes, and that said well was a good and sufficient well in every respect. That thereafter, on or about the 1st day of December, 1913, plaintiff discovered that said well was absolutely worthless, and contained nothing but rain water, and was not a good and sufficient well for the purposes represented by defendant, but was absolutely worthless.
“Plaintiff avers: That said representations made by defendant and his agent were false and were known to be false by defendant, at the time they were made, and were made for the purpose of inducing plaintiff to act upon them and purchase said property, and plaintiff did so believe said representations to be true, believing them to be true. That by reason of said false and fraudulent representations, plaintiff, in order to secure water, was forced to dig three other wells on said land, one 154 feet, one 110 feet, and the other 33 feet. The reasonable value of said labor is $1 per foot, making a total of $297; he paid for cleaning the old well the sum of $25; that he employed a well driller, to whom he paid the sum of $93.75. For material for said wells, he paid the Alamo Iron Works the sum of $92.65. That he was compelled for three or four months to haul water a distance of several miles, at great expense and loss of time, and by reason of said false and fraudulent representations, plaintiff has been damaged in the premises in the sum of $950.”

The measure of damages in such cases, as the one under consideration, is the difference in the amount defendant in error paid for the land and the true valué of the land. Cr, as said in George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456, “Logically, therefore, what he has lost by the transaction is the measure of his damages.”

The pleadings fail to indicate what defendant in error paid for the land, or that it is of less value than the sum he paid for it. The allegations fail to show any damages recoverable under the law. It may be, as contended by defendant in error, that a pleader is not called upon to state what the measure of damages is in his pleadings, but he must allege sufficient to show that, under the law. he has been damaged. Plaintiff in error is not liable to defendant in error for the amount paid out for wells by defendant in error, and there is no allegation in the petition upon which to base the recovery of damages arising from false representations in regard to the land. The court could not invoke the proper measure of damages in rendering the judgment because there was no allegation upon which to base such rule. Montgomery v. McCaskill, 189 S. W. 797.

The judgment is' reversed, and the cause remanded.
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author: WILLSON, C. J.

text:
    DUPREE v. MASSEY et al.
    (No. 1743.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1917.)
    1. PieadiNG <&wkey;lll — Plea to Jurisdiction —Allegations oe Petition.
    In an action for damages for the conversion of property taken under a distress warrant of a justice court in which the defendant entered a plea to the jurisdiction of the court to hear and determine the suit on the ground that the former action was still pending on appeal, in determining the question as to its jurisdiction, trial court should have treated the allegations of the petition as true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236.]
    2. Justices oe the Peace &wkey;>159(l) — Appeal Bond — Necessity.
    If appellant did not file an appeal bond or affidavit in lieu thereof as required by law, to take an appeal from a justice court to the county court, the county court acquired no jurisdiction of the cause.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 550.]
    3. Sheriffs and Constables &wkey;>98(3) — Dis-traint — Appeal—Failure to Give Bond-Return oe Property.
    Where the county court did not acquire jurisdiction of an appeal from justice court because an appeal bond was not filed, property dis-trained should have been delivered to the owner thereof, and its detention by the constable was unlawful.-
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143, 144, 146-157.]
    4. Sheriffs and Constables <&wkey;98(3) — Dis-traint — Disposition oe Property.
    Where the county court did not acquire jurisdiction of an appeal from a justice court, failure of the constable to return the property distrained in the suit to the owner was not excused by an order of the county court directing the sale of the property as perishable, since, as the county court acquired no jurisdiction in the cause, its act ordering the sale of the property was void. 1
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143, 144, 146-157.]
    5. SHERIFFS AND CONSTABLES <@=^99 — LIABILITY of Constable — Detention of Property.
    Where the county court failed to acquire jurisdiction of an appeal from the justice court, and the constable turned over distrained property to the plaintiff and appellant in that suit, both the constable and such plaintiff were guilty of a conversion and liable to the owner of the property for damages.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 137-139, 141.]
    6. Landlord and Tenant &wkey;>273(l) — Bond-Sale of Distrained Property as Perishable-Liability of Surety.
    Where the condition of a bond filed to procure an order directing a sale of distrained property as perishable was that the principal and surety would pay the damages sustained if the sale was illegally and unjustly applied for, or illegally or unjustly made, no right of action against the sureties for conversion of the property by the principal arose without a sale, although the order for the sale of the property was illegally and unjustly applied for.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1149, 1150.]
    Appeal from District Court, Franklin County; H. F. O’Neal, Judge.
    Action by C. C. Dupree against S. N. Massey and others. From judgment of dismissal, plaintiff appeals.
    Reversed and remanded for new trial on the merits.
    See, also, 180 S. W. 668.
    Appellant was plaintiff and appellees, S. N. Massey, J. W. Hazlewood, L. W. Barron, and M. A. Bolin, were defendants in the court below. In his petition appellant alleged that Hazlewood was the constable of precinct No. 3 in Franklin county on November 13, 1914, when Massey sued him (appellant) in the justice court for that precinct to recover $S6.21, which Massey claimed appellant owed him for supplies furnished him during 1914 to enable him to make a crop on land he rented of Massey for that year; that Massey at the time he commenced his suit procured the issuance by the justice of the peace of a distress warrant and had Hazlewood to levy same on certain property belonging to appellant; that by his pleadings in answer to the suit appellant claimed he was not indebted to Massey, but that the latter instead was indebted to him; that the trial in said justice court resulted in a judgment in appellant’s favor against Massey for $1.87 as the sum Massey owed him and $10 as damages he was entitled to recover of Massey; that Massey gave notice of an appeal from said judgment to the county court, and had a transcript of the record sent to the latter court, where it was filed, but did not make and file an appeal bond, or affidavit in lieu thereof, and that the county court therefore did not acquire jurisdiction of the cause; that Hazlewood and Massey entered into a conspiracy to convert to their own use the property levied upon by virtue of the distress warrant in Hazlewood’s possession as constable at the time said judgment in appellant’s favor was rendered; that Massey thereupon, by means of an affidavit and bond in the sum of $161.70, with Barron and Bolin as sureties, and made an exhibit to the petition filed in said county court, procured an order from said county court directing Hazlewood to sell as perishable the property so levied upon and in his possession; that Hazlewood then turned over the property to Massey, and that they together converted same to their own use; that in doing so they acted maliciously and without probable cause; that the property so levied upon and converted was exempt to appellant as the head of a family; and that he had suffered because of their wrongful acts actual damages as specified in the sum of $500, and exemplary damages in the sum of $500, for which he prayed judgment. He also prayed judgment, against Barron and Bolin, the sureties on the bond filed to procure the order directing the sale of the property as perishable, for the amount of same. After sustaining a plea to the jurisdiction of the court to hear and determine the cause and exceptions to the petition filed by appellees, the court dismissed the cause from his docket. The appeal is from the judgment of dismissal.
    H. B. Wilkinson, of Winnsboro, for appellant. S. M. Long and L. W. Davidson, both of Mt. Vernon, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The exceptions sustained by the trial court to appellant’s petition, like the plea sustained by him, questioned the power of that court to hear and determine the suit, on the ground that the action commenced by Massey against appellant November 13, 1914, in the justice court, was pending un-disposed of on an appeal taken by the former to the county court. According to allegations in the petition, which the trial court in determining the question as to its jurisdiction should have treated as true, the suit commenced by Massey in the justice court was not pending in the county court on appeal, but had been finally disposed of by the judgment rendered in the justice court. If, as alleged in the petition, Massey did not file an appeal bond, or affidavit in lieu thereof, as required by law, the county court never acquired jurisdiction of the cause. Dupree v. Massey, 180 S. W. 668. As it did not, the detention thereafterwards by Hazlewood, as constable, of property belonging to appellant distrained in that suit, was unlawful. The property, instead, should have been delivered by Hazlewood to appellant, to the owner thereof. Hamilton v. Kilpatrick, 29 S. W. 819. Hazlewood’s failure to do this was not excused by the order of the county court, procured by Massey, directing a sale of the property as perishable; for, the county court not having acquired jurisdiction of the cause, its act in ordering the sale of the property was void. Carter v. Wyrick, 98 S. W. 645. It followed that if, as alleged in the petition, Hazlewood turned over the property to Massey, he and Massey both were guilty of a conversion thereof and were liable to appellant for damages.

A question as to the sufficiency of the allegations in the petition to show appellant to be entitled to recover on the bond filed by Massey to procure the order directing a sale of the distrained property as perishable was not directly made by the exceptions to the petition; but, as the cause is to be remanded, we think it proper to say they were insufficient. The condition of the bond was that Massey and the sureties would pay appellee the damages he sustained, if the sale ordered was “illegally and unjustly applied for, or illegally or unjustly made.” It did not appear from the allegations that the property was sold under the order, and it did not appear therefrom that appellant was or could have been damaged by reason of the fact merely that an order for the sale of the property was “illegally. and unjustly applied for.”

The judgment is reversed, and the cause is remanded for trial on its merits in the court below.
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author: HODGES, J.

text:
    FIRST STATE INS. CO. v. SHARP.
    (No. 1783.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1917.)
    Appeal and Ebror <&wkey;548(2) — Record — Statement oe Facts.
    In the absence of statement of facts, only assignments needing no reference to the facts for determination can be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2438.]
    Appeal from Cherokee County Court; C. B. Gibson, Judge.
    Action by U. J. Sharp against the First State Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Guinn & Guinn, of Rusk, for appellant. R. M. Wynne, of Troupe, and Perkins & Perkins, of Rusk, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum of ?300 upon a contract of insurance. The record contains no statement of facts, and we are unable to pass upon those assignments which must be determined by reference to the facts. The petition was not subject to the general demurrjer interposed, and the pleadings are sufficient to support the judgment rendered.

There being no other assignments that we can inquire into, the judgment of 'the trial court is affirmed. ,


text:
    CUMMENS v. OWEN BROS. CONST. CO.
    (No. 1760.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1917.)
    1. Appeai, and Error &wkey;>263(l, 3) — Review-Exceptions.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, providing that objections to the charge of the court shall in each instance be presented before the charge is read to the jury, and all objections not so made and presented shall be considered as waived, and article 2061, providing that the ruling of the court and the giving, refusing, or qualifying of instructions shall be regarded as approved unless excepted to, where plaintiff did not except to the court’s action in giving and refusing instructions, he is in the attitude of having approved the rulings at the trial; hence assignments of error based on such action will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1518, 1520, 1522, 1523, 1525, 1529-1532.]
    2. Highways <&wkey;115 — Contracts—Construction op Roads — Liability op Contractor.
    A contract for the construction of a road whereby the contractor assumed liability for all accidents and damages accruing by negligence of himself or employés during the prosecution of the work did not cover an injury received after the work was completed and because of a defect in the road as completed by one not a party to the contract.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 358-370, 372, 373.]
    Appeal from District Court, Fannin County ; Ben H. Denton, Judge.
    Action by E. F. Cummens against the Owen Bros. Construction Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Appellee, having contracted with Fannin county to construct a road for the use of the public employed one Larrimore and bis associates to construct a part of it. This was a suit by appellant against appellee for damages for personal injury which he claimed he suffered as a result of the negligent manner, as he alleged, in which said part of the road was constructed. After hearing the testimony, the trial court instructed the jury to find in appellee’s favor, on the ground that Larrimore and his associates were independent contractors for whose negligence appel-lee was not liable to appellant. The appeal is from a judgment based on a verdict conforming to such instruction.
    Hous Lee and H. G. Evans, both of Bon-ham, for appellant. Cunningham & McMahon, of Bonham, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The assignments based on the action of the court in giving and refusing instructions are overruled. It does not appear that appellant excepted to the action of the court in those particulars. Therefore he is in the attitude of having approved at the trial the rulings complained of in said assignments. Articles 1971 and 2061, Vernon's Statutes; Palmer v. Logan, 189 S. W. 761.

The only other assignment in appellant’s brief is one in which he complains because the court excluded as evidence a clause in the contract between appellee and Fannin county as follows:

“The contractor [appellee] hereby assumes all risk and liability for accidents and damages that may accrue to persons or property during the prosecution of the work by reason of the negligence or carelessness of himself, his agents or employés.”

Had appellant been a party to the contract, or for any other reason entitled to invoke the stipulation set out, and he was not, it would not have helped his case; for he was not injured “during the prosecution of the work” of constructing the road, but after it was completed and because of a defect in it as completed.

The judgment is affirmed.
      i&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes