author: ELY, C. J.

text:
    NUCKOLS et al. v. STANGER.
    (No. 5452.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 28, 1915.)
    Limitation of Actions <§=>19 — Statute Applicable — Land.
    Where the probate court in 1883 granted an order for the sale of land to pay off a vendor’s lien and the expenses of administration, and the land was sold and conveyed by deed dated July 19, 1883, and the grantee on May 9, 1892, conveyed the land to defendant, who had been the administrator, and defendant, with plaintiff’s knowledge that he had repudiated any trust in 1892, thereafter held it adversely to every one, paid the taxes, and exercised all rights of adverse ownership, plaintiff’s action to set aside the sale or to declare that one-third of the land was held by defendant in trust for her as a surviving' sister of the intestate, not brought until 1910, was barred by the statute of limitations of five and ten years.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 73-85; Dec. Dig. <§=>
    ■ Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    Action by E. E. Nuckols and husband against R. H. Stanger. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    See, also, 153 S. W. 931.
    Masterson & Rucks, of Angleton, for appellants. Wilson & Eollett, of Angleton, for appellee.
   ELY, C. J.

This is a suit to set aside the ' sale by the probate court of 200 acres of land, being 5 lots out of the George Harrison league in Brazoria county, instituted by F. E. Nuck-ols, joined by her husband, M. L. Nuckols. Mrs. Nuckols claimed the land as an heir of her brother R. S. Stanger, deceased, and her sister Kate Stanger, deceased. She asked, in the alternative, if the orders of the probate court were not set aside, that the court declare that one-third of the 200 acres of land was held in trust for her by appellee. Ap-pellee pleaded limitations of four, five, and ten years. A verdict was instructed for ap-pellee.

R. S. Stanger died in 1882, leaving surviving him one brother, appellee, and three sisters, Mrs. Nuckols, Mrs. Delaney and Miss Kate Stanger. The last named died in 1885. Appellee qualified as the administrator of the estate of his deceased brother, and on May 30, 1883,. the county court of Brazoria county granted an order of sale of the 200 acres of land in controversy to pay off a vendor’s lien thereon, as well as expenses of administration. By virtue of that sale ap-pellee, as administrator, sold the land to his brother-in-law, Edward Delaney, and, after the sale was duly confirmed by the court, executed a deed to said Delaney to said land. The date of the deed was July 19, 1883, and it was filed for record on that date, and was duly recorded. On May 9, 1892, Edward Delaney conveyed the land to appellee, and on January 5, 1894, Edward Delaney and his wife, Mary Delaney, conveyed the land to ap-pellee. Both deeds were filed for record on their respective dates. When the land was sold to Delaney by the administrator Mrs. Nuckols was a feme sole over 21 years old. She married in 1886. On May 18, 1883, in the suit of James O. McNeill and Edward Delaney, intervener, against R. H. Stanger, administrator, in the district court of Brazoria county, a judgment for $2,699 was rendered against the administrator, and a vendor’s lien foreclosed, and the judgment was certified to the county court for observance. All his interest in that judgment was transferred by McNeill to Delaney. The evidence showed a bona #de sale of the land to pay off the indebtedness of the estate.

The evidence showed that for nine years Delaney was in adverse possession of the land, paying taxes and using and enjoying it; that he then sold it to appellee, who immediately went into possession of it and used and enjoyed and paid the taxes up to 1910, when this suit was instituted. Appellants must have known that, if appellee was at any time holding the land in trust, he had repudiated the trust in 1892; for at that time they sued him for the land, and afterwards dismissed the suit. M. L. Nuckols did not testify that he dismissed the suit because ap-pellee represented to him that he recognized the claim of Mrs. Nuckols, and admitted that he was holding the land in trust for her, but stated that appellee told him that he (appel-lee) did not intend to beat Nuckols out of anything. He also told appellants that, if they would pay off the debts on the land, they might have it. Nothing appellee said to Mrs. Nuckols indicated that he was holding the land in trust for her. If it be true that appellee, by devious methods, obtained a conveyance of the land to himself, he never at any time admitted that he was holding it in trust for any one. Delaney claimed it as his for nearly ten years, and when appellee succeeded him in the possession of the land he held it adversely to every one. He paid the taxes and exercised all the rights of adverse ownership over the land. If there ever was any trust, it was openly repudiated, and appellants knew it. ' We hold that the evidence showed that they were barred by the statutes of limitations of five and ten years, and there was no issue of fact to go to the jury.

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


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    CHILDRESS v. HARMON et al.
    (No. 7323.)
    (Court of Civil Appeals of Texas. Dallas.
    March 13, 1915.
    Rehearing Denied May 15, 1915.)
    1. Appeal and Error <@=^48 — Decisions Ap-pealable — Amotjnt in Controversy.
    Though an appeal involved only a controversy over a sum in the hands of a garnishee amounting to less than $100, where the basis of the garnishment was a judgment for over $100, the Court of Civil Appeals had jurisdiction.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 226-232; Dec. Dig. <@=48.]
    On Rehearing.
    2. Landlord and Tenant <@^328 — Lien eor Supplies — Loss—Removal oe Crops.
    A tenant and his landlord having a lien on the tenant’s crops removed cotton raised on halves to be ginned and prepared for market, and after it was ginned delivered the warehouse receipts therefor to a bank which had a chattel mortgage on the tenant’s interest, with instructions to sell the cotton when it reached a certain price. The landlord had no understanding with the bank that the proceeds after payment of the bank’s claim should be applied on his lien, nor did the tenant agree that such excess should be so applied by the bank. Held that, under the statutes giving landlords ’a lien on the crops raised by the tenant, such lien to exist for one month after the removal of the crops,' and Rev. St. art. 5478, providing that the removal of crops with the consent of the landlord to be prepared for market shall not be a waiver of the lien, but that it shall attach to the 'products so removed, the landlord lost his lien by consenting to delivery of the tickets to the bank and that the cotton might be sold by the bank, and a levy under a garnishment in an action against the tenant created a lien on the tenant’s interest superior to the landlord’s claim.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1388, 1390-1392; Dec. Dig. <®=>328.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action, by B. M. Childress against J. H. Harmon and others. From a judgment for plaintiff for insufficient relief, he appeals.
    Reversed and rendered on rehearing.
    Dashiell & Coon, of Terrell, for appellant. Ed. R. Bumpass, of Terrell, for appellees.
   RAINEY, C. J.

B. M. Childress, appellant, sued in the justice court J. I-I. Harmon for $142.42, and caused a writ of garnishment to issue against the First State Bank of Terrell. The bank answered that said Harmon was indebted to it in the sum of $185.50, and Interest, to secure which Harmon had given it a mortgage on his crop of cotton grown during 1913, and that Harmon had delivered to it 11 hales of cotton which it held subject to said mortgage. On January 13, 1914, J. Y. I-Iarmpn intervened and pleaded, In substance, that he rented to J. H. Harmon certain land for the year 1913 and on which said cotton was raised, that he was to have one-half of said cotton for the rent of same, that he advanced for the making and growing of same to J. H. Harmon the sum of $125.33, that he owned one half of same absolutely and had a landlord’s lien on the other half to secure rents and advances. Judgment was rendered in the justice court for appellant against J. I-I. Harmon and against appellant for in-tervener, and on appeal to the county court a like judgment was rendered.

During the pendency of the suit by agreement of all parties the cotton was sold by the bank, and after the payment of the bank’s debt there was left in its hands $51.05 out of J. H. Harmon’s one-half. The right of J. V. Harmon to one-half of the cotton was admitted by appellant.

Appellant contends that J. Y. Harmon lost his landlord’s lien for the reason that the cotton had been removed from the premises for more than 30 days, that by virtue of the levy of garnishment he • had fixed a lien which was superior to the right of J. V. Harmon.

The evidence shows that J. H. Harmon is the son of J. Y. Harmon, and that during the year 1913 he lived on and raised a crop on J. Y. Harmon?s lands, which was raised on the halves. During said year J. V. Harmon, as landlord, furnished to J. I-I. Harmon implements and supplies in the amount of $125.33, to enable him to raise and gather the crop. The trial court found:

“That the said 11 bales of cotton was raised upon land rented by said J. H. Harmon from said intervener, J. Y. Harmon, and that as the same was gathered it was carried to Terrell, Tex., to be ginned and prepared for market. That a part of said cotton was so carried by both J. H. and J. Y. Harmon, and after being ginned was stored by them, the landlord consenting both to the carrying of same to be ginned and to the storing of same in the warehouse at Terrell, Tex., for a better market. That the cotton tickets for said 11 bales were deposited with the garnishee, the tenant delivering to said garnishee all said receipts, or tickets, except three, which three were delivered to said garnishee by the landlord, or intervener, and that both J. V. and J. H. Harmon, consented thereto, and the said tenant J. H. Harmon instructed the bank to sell when the cotton reached a certain price, which was agreed to by J. V. Harmon, but that J. V. Harmon, intervener, had the authority to sell all or any part of said cotton at any time.”

It was admitted that the bank’s lien an J. H. Harmon’s one-half of the cotton was superior, which, after being satisfied, $51.05 was left in the hands of the bank and constitutes the bone of contention.

The statutes give to landlords a lien on the crops raised by the tenant on the premises for all necessary money, tools, supplies, etc., furnished by the landlord to the tenant for the purpose of making, gathering, etc., said crop, and makes it unlawful for the tenant to remove same from the premises without the consent of the landlord; said lien to exist for one month after such removal. The statutes (article 5478a) also provide:

“The removal of the agricultural products with the consent of the landlord for the purpose of being prepared for market shall not be considered a waiver of such lien, but such lien shall continue and attach to the products so removed the same as if they had remained on such rented or leased premises.”

In this case the cotton was removed from the rented premises with the consent of the landlord for the purpose of ginning and preparing it for market, and after it was so prepared they jointly stored it in a warehouse, receiving tickets therefor, which tickets they turned over to the bank to secure an indebtedness due by J. H. Harmon, with the understanding that the cotton was to be held for a better price, and that the bank could sell when it reached a certain price, but that J. Y. Harmon, intervener, had the authority to sell all or any part of said cotton at any time. Although the cotton had been removed from the rented premises and stored in a warehouse more than 30 days, it being removed for preparation for market, the landlord jointly with the tenant had held possession of it for a part of the time, and then placed it in control of the bank and the landlord, and, by consent of all parties the landlord being given the right to sell any part or all at any time, we think it follows that the tenant, J. H. Harmon, intended for J. V. Harmon to reimburse himself for the supplies, etc., furnished out of the proceeds of the half that had been hypothecated with the hank. Had J. V. Harmon sold the cotton, he would unquestionably have had the right 'to reimburse himself after paying the bank; the bank’s interest in the cotton being the amount of its debt'.

"When products are removed from the rented premises with the consent of the landlord for preparation for market, the lien is not restricted to one month after removal, but it continues in the landlord; for how long the statutes do not say.

In the case of Gaw v. Bingham, 107 S. W. 931, we held that when the crop had been removed from the rented premises and placed in the barn of the landlord with the consent of the tenant, where it remained for more than one month awaiting a better price the landlord did not waive his lien.

It has been held that, where cotton was removed from the rented premises without the consent of the landlord and sold within the 30 days from time of removal, the landlord may bring his suit against the buyer for conversion after one month has elapsed. Under the facts in this ease, we think J. V. Harmon "was entitled to judgment, as held by the court below.

This court has jurisdiction of this appeal. The basis of the garnishment was a judgment for over $100, which determines the jurisdictional amount.

The judgment is affirmed'.

On Rehearing.

In affirming this case we acted on the theory that J. V. Harmon, the landlord, had constructive possession of J. H. Harmon’s one-half of the cotton after it was stored in the warehouse. After further consideration of the evidence, we are of the opinion that J. V. Harmon lost his lien on J. H. Harmon’s one-half of said cotton by his consenting to the delivery of the cotton tickets to the bank and consented that the same might be sold by the bank when he at that time made no claim of his lien, and had no understanding with the bank that the proceeds of the sale after paying the bank’s claim should be applied to his lien. Nor is there any evidence showing that J. H. Harmon agreed to the excess being applied by the bank to said lien. Under the evidence, we have reached the conclusion that J. V. Harmon lost his lien, and that the levy on the garnishment created a lien upon the fund superior to his claim.

The motion for rehearing is granted, and the judgment will be reversed and here rendered for appellant.
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURF, J.

text:
    CAMDEN FIRE INS. ASS’N v. BOMAR.
    (No. 7341.)
    (Court of Civil Appeals of Texas. Dallas.
    April 17, 1915.
    Rehearing Denied May 15, 1915.)
    1. INSURANCE i@=X3328 — FORFEITURE— CHANGE in Title ob Possession.
    D., holding an insurance policy on a building payable to the holder of a vendor’s lien, negotiated an exchange of property with real estate agents, who represented to him that H. was the purchaser, and had the deed made to I-I. D. told the insurance agent of the sale, transferred the policy to H., with the agent’s consent. H. had not agreed to buy the property, the agents having acted upon the assumption that they would be able to negotiate a sale to him. Held), that if the deed did not pass title to H., it remained in D. and there was no change in the title, possession, or interest within a provision of the policy, while if the deed did pass the title to I-I. such change in title was expressly consented to and the policy was not invalidated.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 794r-S22, 825; Dec. Dig. 328.]
    2. Insurance <@=^282 — Forfeiture—Misbeb-BESENTATION OB CONCEALMENT OB MATERIAL Eact.
    D.’s statement to the insurance agent that he had sold the property to H. was not such a concealment or misrepresentation of a material matter as invalidated the policy, there having been no misrepresentation or concealment, but onlj' a statement concerning a matter relative to which D. had been misinformed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 601-635; Dec. Dig. <®=^282.]
    3. Insurance «^598 — Actions on Policies —Interest—‘ ‘Liquidated Demand . ’ ’
    Under Rev. St. 1911, art. 4874, providing that a fire insurance policy, in case of a total loss by fire of the property insured, shall be a “liquidated demand” against the company for the full amount of the policy, provided that this shall not apply to personal property, upon the total destruction of an insured building by fire, neither notice nor proof of loss was necessary, the claim being due upon demand, a provision in the policy that the loss should not become payable until 00 days after notice and satisfactory proof of the loss became inoperative and without force, and, payment of the loss having-been refused, interest was recoverable from the date of the fire.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1494; Dec. Dig. ¡§=3598.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by L. H. Bomar against the Camden Fire Insurance Association and others. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    W. W. I-Iilbrant, of Dallas, for appellant. Cecil D. Simpson, of Dallas, for appellee.
   RASBURF, J.

Appellee sued appellant upon a fire insurance policy in the sum of $700. E. W. Daniels, J. W. Heffington, and W. W. Haggard were made parties defendant to the suit. At the conclusion of the testimony the court discharged I-Ieffington upon his disclaimer of any interest in the policy, and instructed the jury to find that Daniels and Haggard, neither of whom appeared in the case but wholly defaulted, had no interest in the policy, and to return verdict against appellant for the amount of the policy, which was done, and upon which similar judgment was entered, and from which this appeal is perfected. We will not state the pleadings in detail, since they properly raise the issues presented in the brief.

The following are the essential and practically undisputed facts developed on trial; On May 21, 1912, appellant issued a fire insurance policy to J. E. Redd for a term of three years from said date, in consideration of the payment by said Redd of the premium demanded, insuring the one-story frame building belonging to him, situated on lot 3, block C, Carl’s Court addition to Ft. Worth, Tex., against all direct loss or damage by fire, except as provided in tbe policy, in an amount not exceeding $700, any loss or damage arising under the policy payable to appellee, L. H. Bomar, as his interest might appear. Subsequent to the issuance of the policy Redd sold and conveyed the insured property to E. W. Daniels, to whom Redd, with the consent and approval of appellant, transferred his interest in the policy. Thereafter, and on March 29, 1913, Daniels by written indorsement on the policy transferred his right and interest in the policy to one J. W. Heffington, and to which transfer appellant consented by written indorsement on the policy, reciting the consent to be based upon the fact that Heffington had purchased the insured property. On April 30, 1913, the insured property was totally destroyed by fire. Wlicn appellee sold and conveyed the insured property to Redd he retained in the deed the vendor’s lien against the same to secure the payment of a note for $S90, a part of the purchase price. This note was assumed by Daniels -when he bought, and was unpaid at the time the property was destroyed. This indebtedness was tbe interest of appellee referred to in the policy. At the time of the fire the deed records of Tarrant county disclosed that Daniels held the title to the property. It appears, however, from the record of this appeal, that before the property was destroyed by fire Daniels had authorized J. E. Wagner & Co., real estate agents, to sell or exchange same, and that these agents had shown Daniels a place represented by the agents to belong to one S. W. Shaver, which he agreed to take in exchange for his. When Daniels went to the office of the agents to consummate the exchange, he was requested to deed Ms property to J. W. Heffington. Upon inquiring of the agents why the deed was to be made to Heffington they explained that they had been doing some trading and in order to avoid writing deeds and to save recording fees the deed was made to Heffing-ton, the “last purchaser.” Daniels was satisfied, and executed the deed, and the agents delivered to him a deed from Shaver to his property. Under the deed so 'delivered Daniels took possession of the Shaver property. Daniels informed appellant’s agent that he had sold to Heffington, and at the suggestion of the agent Daniels transferred the policy to Heffington, the agent consenting thereto, in writing. Heffington was not present when Daniels informed the appellant’s agent that he had bought the property, and knew nothing of it. The agent in making the transfer was acting in good faith, and for the purpose of protecting the interest of the parties. As a matter of fact Heffington never agreed to buy the Daniels lot, never authorized the deed to be made to him, never accepted same, and did not authorize the transfer upon the policy of insurance. The real estate agent’s version of the transaction is that he made the trade with Daniels and Shaver, but that before it could be consummated Shaver receded (though Shaver testified that he never at any time agreed to purchase the Daniels lot, in fact refused to do so), and thereupon W. W. Haggard, connected with Wagner & Co., or at least in the real estate business, agreed to take the Daniels lot, but directed the deed to be made to Heffington, to whom he thought he could sell it. Thus matters stood when the fire occurred. After the fire Haggard requested Heffington to claim title to the property in order that the insurance might be collected. Heffington declined to do so, on the ground that the property was uot and never had been his. Haggard was a party to the suit, and not only defaulted in that respect, but did not testify at trial, leaving Heffington’s testimony without contradiction. Appellee requested payment of the policy, which was refused by appellant’s agent.

As material to the issues on this appeal the policy contained the following provisions:

“That this entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; or if the interest of the insured be not truly stated herein; * * * or if the interest of the insured be other than the sole and unconditional ownership; or if the subject of insurance be a building on ground not owned in fee simple by the insured; * * * or if any change, other than by death of the insured, take place in the interest, title or possession of the subject of insurance”

—unless otherwise provided by' agreement indorsed on or added to the policy. The policy also provided:

“And the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company,” etc.

It is first urged that the court erred in peremptorily directing verdict for appellee, Bomar, because the evidence shows that the title to the property was not in Daniels, the insured, at the time of the fire, and hence in violation of that provision of the policy which forfeits same in ease of any change in the interest, title, or possession of the subject of insurance, unless agreed to by the company. And in another assignment of error, it is urged that the court erred in directing the verdict it did because the title was in Heffington, and for that reason was in violation of the quoted provision of the policy. We are unable to see how it will affect appellant’s liability to appellee on the policy in either event. The title was vested in either' Heffington or Daniels. That fact is beyond controversy. In whichever it was, the amount of the loss by the terms of the policy was to be paid to appellee, since the appellee’s debt was in excess of the insurance. If the deed made under the circumstances which we have detailed in fact passed the title to Heffington,. there is obviously no error in the court’s action, for the reason that by indorsement written upon the policy it consented .to and approved the transfer to Heffington, the clause making the loss payable to appellee according to his interest never having been changed. If the deed to Heffington was made upon the assumption by Haggard that he would be able to negotiate a sale thereof to Heffing-ton, but in which he failed, and we incline to the opinion that the evidence supports that conclusion, then the title surely would be in Daniels, and if in Daniels, appellant would yet be liable because there was no such change-in title, possession, or interest of the property as contemplated by the policy. The in-dorsement made upon the policy by appellant’s agent, even though in good faith, could not produce a change in title, if in fact the title did not pass. That it did not pass is quite clear from the uncontroverted testimony of Heffington, who makes it clear and certain that he never agreed to buy the property or to accept the deed. Nor is the-statement made by Daniels that hé had sold the property to Heffington such concealment or misrepresentation of a material matter as contemplated by the policy, since the information imparted was a fact concerning: which Daniels had been misinformed rather than a misrepresentation or a concealment thereof. He neither concealed nor misrepresented any fact known by him relating to the title to the insured property.

It is also urged that the court erred in-directing the jury to find for appellee for interest from April 30, 1913, the date the property was destroyed by fire, for the reason that it is provided by the policy that any sum due thereunder shall be payable 60 days after notice, estimate and satisfactory proof' of loss having been furnished. In this connection the evidence shows that the insured premises were a total loss, which converted the policy into a valued one under article 4874, R. S. 1911, and that payment of the loss was refused. Under such concurring facts neither notice nor proof of loss is necessary ; the claim being dhe upon demand. Such being the facts, the provision allowing 60 days in which to pay the loss becomes inoperative and without force. Northern Assur. Co., Limited, of London et al. v. Morrison, 162 S. W. 411.

Finding no reversible error in the record, the judgment is affirmed.
      <§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. CARMACK.
    (No. 418.)
    (Court of Civil Appeals of Texas. El Paso.
    April 22, 1915.)
    1. Commerce <@=>33 — '“Interstate Commerce” —What is.
    A shipment from a point in the state to a point in a sister state is an “interstate” shipment, though the initial carrier obligated itself to transport the goods wholly in the state.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. <@=>33.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Carriers <@=>218 — Bill oe Lading — Stipulations — Validity.
    Under the Carmack Amendment to the Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), a stipulation in a bill of lading of animals that, in case of loss of any of the animals from any cause for which the carrier is liable, the value thereof shall be its actual cash value at the time and place of shipment, not to exceed a specified sum per head, is valid, and governs the assessment of damages.
    [Ed. Note. — For other cases, see Carriers, ■Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <®=218.]
    3. Pleading <@=>412 — Failure to Reply — Waiver.
    Special denial by plaintiff of defensive matter pleaded by defendant is waived by proceeding to trial as if issue had been properly joined, and the objection cannot be raised for the first time after an adverse verdict.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. <@=>412.]
    'Appeal from Brewster County Court; A. M. Turney, Judge.
    Action by G. C. Carmack against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. B. Teagarden, of San Antonio, W. Van Sickle, of Alpine, and Baker, Botts, Parker & Garwood of Houston, for appellant. J. C. Brooke, of Alpine, for appellee.
   WALTHALL, J.

Carmack sued appellant to recover the value of five horses shipped from Alpine, Tex., to Little Rock, Ark.; the animals having died from injuries negligently inflicted while being transported over appellant’s line of railroad from Alpine to San Antonio, Tex. The bill of lading issued by appellant discloses that the animals were waybilled from Alpine- to Little Rock. It was stipulated therein that the railway company should transport the animals from I Alpine to San Antonio, the end of the lino of road operated by appellant, on the route over which the same were waybilled, there to be delivered to the consignee or transferred to the railway company over which they were waybilled for further transportation.

Plaintiff’s pleadings and the undisputed evidence'disclose that the animals when shipped from Alpine, were destined to Little Rock, Ark., and there is no merit in the contention that it was an intrastate shipment. The fact that appellant only obligated itself to transport the animals to San Antonio does not affect the interstate character of the shipment. It was clearly interstate in its nature. Navigation Company v. Insurance Company, 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17; Railway Co. v. Langbehn, 158 S. W. 244; Railway Company v. Grain Company, 72 S. W. 419; Id., 73 S. W. 845.

Error is assigned to the action of the court in admitting testimony as to the market value of the horses at Little Rock, which was objected to upon the ground that this was not the proper measure of damages; the correct measure being the market value at Alpine.

The bill of lading provided, in case of loss of any of the animals from any cause for which the company would be liable, that the value thereof should be its actual cash value at the time and place of shipment, not to exceed $100 per head. In view of this provision of the contract, which was specially pleaded, it was error to admit the testimony indicated. If, in an interstate shipment of Xiroperty, the value of same is fixed by agreement between the parties as of its market value at the time and place of shipment, this" valuation must govern in assessing the damages at a trial of the issue.

This is well settled in view of the act of Congress approved June 29, 1906, commonly known as the Carmack Amendment, and the decisions construing same. Railway Co. v. Sparks, 162 S. W. 943; Railway Co. v. Langbehn, 158 S. W. 244; Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 491, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed. 328.; Railway Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323.

The assignment indicated is sustained, as well as the second, which asserts that there was no proper evidence before the court of plaintiff’s damage upon which to base a judgment.

The third is overruled. Special denial by plaintiff of the defensive matter pleaded by defendant .was waived by proceeding to trial as if issue had been properly joined upon the allegations in the answer. The objection was waived that the defense pleaded was admitted because not controverted, and could not be raised for the first time after an adverse verdict had been returned. Railway Co. v. Pennington, 166 S. W. 461; Tel. Co. v. Andrews, 169 S. W. 218; Railway Co. v. Tomlinson, 169 S. W. 217; Hill County, etc., v. Gathings, 173 S. W. 597.

Reversed and remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    ARNOLD v. STATE.
    (No. 3530.)
    (Court of Criminal Appeals of Texas.
    April 28, 1915.)
    1. Larceny <§=^1 — Passing Title — “Theft” —1“Swindling.”
    Where C. paid defendant $10, on her representation that for a fee of that amount she would obtain for him certain employment, which she never did, intending the title of the $10 to pass to her, defendant was not guilty of “theft,” but, at most, of “swindling.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 1; Dec. Dig. <g=s»l.
    For other definitions, see Words and Phrases, First and Second Series, Swindling; Theft.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mrs. Pete Arnold was convicted of theft, and appeals.
    Reversed and remanded.
    Poulter & Johnson, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of misdemeanor, theft, and her punishment assessed at a fine of $10, and one day’s confinement in the county jail.

The most serious question in the case is the contention that the evidence offered in behalf of the state does not constitute theft. J. E. Cunningham testified he was in search of employment; that appellant claimed to be running an employment bureau; that she told him she could secure him employment on a farm, as manager thereof, at $80 per month, and her fee would be $10. He paid her this fee, and she had failed to secure him employment. Upon demand she returned him $8 of the money, but did not return the other $2 until the prosecution was begun. The most favorable light the testimony could be viewed from the state’s standpoint would be that appellant was guilty of misrepresentation in stating she could secure Cunningham employment if he paid her $10. Take it for granted that everything she said was untrue, and the fraudulent representations were made to secure $10 from Cunningham, this would not constitute theft, but swindling; for, when Cunningham paid her the money, he intended for the title of the $10 to pass to Mrs. Arnold. In the recent case of Lewis v. State, 171 S. W. 217, we had this question before us, and we held:

“Pen. Code 1911, art. 1332, provides that, if money be obtained by any false pretense with intent to deprive the owner of the value thereof, and to appropriate it to the benefit of the person taking, such person is guilty of theft. Article 1421 declares that the acquisition of money by any false or deceitful pretense with intent to appropriate it to the use of the person acquiring is swindling. Hold that, where by the fraud practiced the title to money is passed, the offense is ‘swindling,’ and not theft, but, if mere possession is obtained by false pretenses, and title does not.pass, the person acquiring the money is guilty of ‘theft.’ ”

See, also, Underwood v. State, 49 Tex. Cr. R. 2S5, 91 S. W. 572; Bink v. State, 50 Tex. Cr. R. 448, 98 S. W. 863, and cases cited.

The evidence does not support a verdict finding appellant guilty of theft, but of swindling, if any offense, and the judgment is reversed, and the cause remanded.
      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    CURTIS v. STATE.
    (No. 3537.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    Rehearing Denied May 19, 1915.)
    1. Criminal Law <&wkey;196 — Jeopardy—Former Jeopardy.
    The statute makes burglary of a private residence at night a distinct offense from ordinary burglary, hence the fact that accused had been previously indicted and placed on trial under an indictment charging him with ordinary burglary does not preclude a subsequent prosecution for burglary of a private residence at night, the court upon proof of those facts having withdrawn the first case from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 384; Dec. Dig. <5&wkey;196.]
    2. Criminal Law <&wkey;1170 — Impeachment— Evidence.
    In a prosecution for burglary, where the owner of the premises robbed gave a newspaper man an account which differed from his testimony at trial, the exclusion of the reporter’s article concerning the crime was proper where the reporter himself testified and flatly contradicted the owner.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. &wkey;> 1170.]
    3. Burglary <&wkey;41 — Prosecution—Evidence —Sufficiency.
    Evidence held to warrant a conviction of burglary of a private residence at night.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. <&wkey;>41.]
    Davidson, J., dissenting in part.
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Joe Curtis was convicted of burglary of a private residence in the nighttime, and he appeals.
    Affirmed.
    William II. Allen, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under an indictment charging him with burglary of a private residence in the nighttime, his punishment being assessed at 5 years’ confinement in the penitentiary.

When the case was called for trial he filed a plea of jeopardy setting out that he had been previously indicted and placed on trial before a jury under an indictment charging him with an ordinary burglary by force, threats, and fraud, without alleging it was burglary of a private residence in the nighttime. In other words, the first indictment charges him with an ordinary burglary, whereas the one under which this conviction was obtained charges him with burglary of a private residence at night. Upon the first trial, after proceeding with the trial before the jury, in the introduction of evidence, it is to be supposed from the pleadings it was discovered that the house was a private residence, the burglary being committed at night. Appellant could not therefore be convicted under a charge of ordinary burglary. Burglary of a private residence at night is a distinct and different offense, made so by the statute expressly. In other words, under an indictment charging ordinary burglary, a party cannot be convicted for the 'burglary of a private residence at night; nor can he be convicted, if the charge is for burglarizing a private residence, for the ordinary burglary. This being true, the court was correct in withdrawing the case from the jury, so that jeopardy did not attach. If under the facts, or the transaction itself, the offense of ordinary burglary could have been carved out of the real facts, that is, if ordinary burglary could be had for the burglary at night of a private residence under the doctrine of carving, his proposition of jeopardy would be well taken, but this could not be done. It is expressly recognized that under the doctrine of carving where the state elects out of any given state of facts growing out of a transaction to prosecute for one phase of it, that would end the prosecution. The state can carve but once, and having elected its line of prosecution, would be held to it. But that is not possible in this case. A similar case might be supposed. For instance, a trial for theft from the person could not bar an ordinary theft, and vice versa. The two offenses are entirely distinct. They are so defined and placed in our Penal Code that one could not be carved out of the other. It would not be possible to place a man in jeopardy for ordinary theft under an indictment charging him with theft from the person. This ruling of the court “striking out” the plea of jeopardy, we think, was not erroneous.

The two remaining bills of exception are, in substance, that on the morning after the alleged burglary the owner of the house, whose name was James, made a statement of the occurrence to Mr. Hambrick of the attendant circumstances of the burglary. Mr. Hambrick, being a newspaper man, wrote it up for the Times Herald, in which paper it was published. James’ testimony before the jury was different from the statement he made to Hambrick. James, on the trial of the case, identified appellant as being the man who attacked him near his residence on the night of the burglary. The statement to Mr. 1-Iambriek was to the effect, in substance, that James really did not know who it was, but stated it was a “large yellow negro,” or a “tall yellow negro.” The evidence shows that appellant was neither; that he was a man about 5 feet and 8 or 9 inches in height, and was what some of the witnesses called a “brown colored negro,” and some a “ginger colored negro.” Ham-brick was permitted to impeach James upon these statements-. The appellant also insisted upon placing before the jury the “writeup” by Mr. Hambrick of the conversation with James. This is based upon the fact that James’ attention, was called to the arli-cle while he was on the witness stand, and he stated that he recollected reading it, and it may have been substantially correct; that he did not pay particular attention to it. The appellant then offered the article in evidence supposedly either to bolster Ham-brick’s testimony, or to impeach James’ evidence, or for both purposes. ' Inasmuch as I-Iambrick contradicted flatly Mr. James’ testimony in regard to his description of the negro, we are of opinion there was no such error in refusing the newspaper article as evidence as to call for a reversal of the judgment. That was largely Mr. I-Iambrick’s version of the conversation that occurred between himself and James, and the material part, of that was gotten before the jury by Hambrick’s testimony. If Mr. James had stated that the article was correct, it would have been but a contradiction of his testimony as given on the trial and as written up by the witness I-Iambrick. The writer is of the opinion that it ought to have gone before the jury. While it might not be of sufficient importance to require a reversal, still under the circumstances the writer thinks it ought to have been permitted to go to the jury.

It is contended the evidence is not sufficient. This presents a right difficult question, which to the mind of the writer is well taken, but I am met again with the fact that my Brethren do not agree with me. Upon the trial of the case Mr. James identified defendant — not by name, but said he kn'ew defendant, and he was the man who was at his house on the night of the burglary. He had stated to Hambrick a description of another man entirely, and, in substance, that he did not know the negro, but he was a tall yellow negro, or a large yellow negro. He had also on the night of the burglary failed entirely to identify the defendant in talking to the officers with reference to the burglary. However, he fully identified the defendant on the trial as being the man. In addition to this state of the record, several witnesses testified to a complete alibi, placing themselves in such position that they could have been contradicted if they were not testifying the truth. The state offered no evidence in contradiction of the alibi of these witnesses. They placed themselves in company with appellant at subh time and under such circumstances that he could not have been the guilty party. The nearest approach to James’ residence by appellant on that night, under their testimony, was about one mile, or in the neighborhood of that distance. James testified that it was defendant, and he recognized him, and under the following circumstances: He left his home in the morning and did not return until 6 or 6:30 in the evening. His wife had left home at 10 or 11 o’clock in the morning, and had gone in the country to visit her grandmother. James, upon returning to his house in the evening about six o’clock, discovered the fact that his house had been burglarized. He closed the house and went off in search of officers. Upon his return later about 10 o’clock he discovered that in the meantime his house was again burglarized. That he went in the house and turned on the light, and noticed a door swing open and close and a negro woman ran out of the room. He chased her out of the house and finally caught her. After he got hold of her some distance from his residence he says appellant came upon him with an open knife and cut at him, and would have cut him seriously but was prevented by his watch chain. The theory of the state was that appellant was keeping watch while the woman was in the house. There was no evidence that he was in the house, and the only evidence with reference to that matter is, as above stated, that about the time James caught the negro woman appellant came from somewhere about the premises and made an assault upon him. He turned the woman loose, and the man and woman fled.

Under this state of case my Brethren believe the case ought to be affirmed, and it is accordingly so ordered.
      cg^oFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Iniexes


text:
    EGBERT v. STATE.
    (No. 3515.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    Rehearing Denied May 19, 1915.)
    1. Cbiminai, Law <&wkey;814.— Instructions — Circumstantial Evidence.
    Where the main fact to be proved in a criminal case is shown by direct testimony, a charge on circumstantial evidence is not required.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985,1987; Dec. Dig. &wkey;814.j
    2. Criminal Law i&wkey;>814 — Instructions — Circumstantial Evidence.
    Where a criminal act has been proved by direct evidence, a charge on circumstantial evidence is not required, though the intent with which the act was committed is established by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821.1833. 1839, I860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;814.J
    3. Criminal Law <&wkey;814 — Instructions— Circumstantial Evidence.
    Where the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 18S3, 1890,1924,1979-1985, 1987; Dec. Dig. &wkey;814.]
    4. Criminal Law <&wkey;814 — Evidence —Circumstantial Evidence — Instructions.
    Where a witness testified that he saw a shot fired and decedent fall, and that accused fired the shot, and other witnesses showed that decedent was shot in the back, and that accused was in the rear of him, while the only other person who fired shots on the occasion of the killing was in front of decedent, there was direct testimony that accused fired the fatal shot, and an instruction on circumstantial evidence was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985,1987; Dec. Dig. &wkey;814.]
    5. Homicide <&wkey;68, 74 — “Negligent Homicide” — Acts Constituting.
    Under White’s Ann. Pen. Code 1911, arts. 683-6S9, 692-694, defining homicide by negligence as homicide in performance of lawful or unlawful acts, and declaring- that there must be no apparent intent to kill, and that negligent homicide of the first degree may be committed by discharging firearms on or near a public highway, and that negligent homicide of the second degree may be committed where accused commits an unlawful act, “negligent homicide” is a killing which can only be predicated on facts showing no intention to kill, and one who intentionally fired a gun under the mistaken belief that it was loaded with shot that would inflict injury only, while the gun was so loaded as to cause decedent’s death, he was guilty of negligent homicide in the second degree, and,_ if the shooting occurred on or near a public highway while engaged in a lawful act, he was guilty of negligent homicide in the first degree.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 91, 92, 97-101; Dee. Dig. &wkey; 68, 74.
    For other definitions, see Words and Phrases, First and Second Series, Negligent Homicide.]
    6.' Ckiminal Law <&wkey;829 — Instructions—Refusal oe Instructions Covered by Charge Given.
    It is not error to refuse a requested charge fully covered by the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;>829.]
    7. Criminal Law <&wkey;1166 — Denial oe Continuance-Prejudicial Error.
    The overruling of a motion for a continuance on the ground of the absence of a witness who would testify only on the issue of guilt of accused of manslaughter was not erroneous, where accused was found guilty of manslaughter only, and was subjected to the lowest penalty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. 4&wkey;1166.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Jack Egbert was convicted of manslaughter, and he appeals.
    Affirmed.
    Farrar & McRae, of Waxahachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence would show that appellant and Bob Craven were employed by Ellis county as guards of the county convicts. On the day of the homicide they were taking some 30 convicts from the county farm to the farm of Mr. Charles Davis. Mr. Craven was in advance of the convicts and appellant was in the rear of them. When near Davis’ gin some 5 of the convicts made a break for liberty. Shots were fired by both appellant and Craven, and one of the escaping convicts, Leslie De Walt, was killed. The doctor, who examined the body of the dead man, says:

“The cause of his (deceased’s) death was hemorrhage from a gunshot wound, as I saw it. I looked at his wounds; do not know how many there were, but they were in his back; could not say how many there were. My best recollection is that there were eight or ten wounds. There was one right here (indicated) even down, on his hips, there was one or two on his hips, as I remember, and there was one that just cut right across his shoulder here (indicated), and they were all over his back — scattered around over his back.”

The first contention made by appellant is-that the court erred in failing to charge on circumstantial evidence, and in failing to give his special charge presenting that issue.

It has always been the rule in this state that, if there is direct testimony of the main fact to be proved (in this case that appellant fired the shot that killed deceased), a charge-on circumstantial evidence is not required. Tooney v. State, 8 Tex. App. 462; Buntain v. State, 15 Tex. App. 520; Hunnicut v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

And where an act has been testified to-by direct evidence a charge on circumstantial evidence is not required, because the intent with which the act was committed is sought to be established by circumstances. Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

Again, if the facts proven are in such-, close juxtaposition to the factum probandum as to be equivalent to direct testimony,' a. charge on circumstantial evidence is not required. Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Smith v. State, 90 S. W. 638; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Adams v. State, 34 Tex. Cr. R. 471, 31 S. W. 372; Holt v. State, 9 Tex. App. 582; Montgomery v. State, 55 Tex. Cr. R. 502, 116 S. W. 1160; Wheeler v. State, 15 Tex. App. 612.

We have cited these general propositions-of law (which have always prevailed in this-state), and will now apply them to the evidence in this case.

E. A. Talbert, one of the convicts, testified that deceased and he were “chums or partners”; that they had been sent to the-county farm for unlawfully riding trains; that in going from the county farm to the-Davis farm that he and deceased were about the center of the convicts; that the convicts who attempted to escape threw their cotton-sacks towards the rear and ran; that they ran up near the gin, and when they got about the middle of the seedhouse the shot was fired, and he saw De Walt fall; that Capt. Jack (appellant) fired that shot.

Appellant’s able counsel ingeniously argue that this is shown to be but an opinion of the witness, taking into consideration his position, etc., but we take it that it is positive testimony that appellant fired the shot that killed deceased. It may be that other testimony in the record would authorize the jury to disregard it (but apparently they did not do so), but we are only discussing at this time whether or not the court committed error in failing- to charge on circumstantial evidence, and, in our opinion, with this evidence in the record, no such charge was called for or required. Again, the testimony of all the witnesses show that appellant was iff the rear of the convicts and Craven was in front of the convicts, and these two men alone fired shots on that occasion; that deceased was shot in the back, and it would be difficult for a man in front to have fired the shot that hit De Walt in the back, when he was in front of him. The testimony showing that appellant was in the rear, Craven in front, and the shot struck the deceased in the back, both shooting, the facts would be about equivalent to positive testimony that appellant fired the shot that killed deceased, if the testimony of Talbert was not in the record, and under the authorities above quoted this assignment presents no error.

The next proposition insisted on by appellant is that, while appellant testified that he fired a shot, he did not intend to kill anyone, and he did not know whether or not he hit any one or not; that he did not know whether or not he shot De Walt or Craven shot him. He also testified that he thought the gun was loaded with No. 4 shot, and not buckshot, and the court should have instructed the jury:

“You are further instructed that our law provides that, if a person laboring under a mistake as to a particular fact shall do an act which would be otherwise criminal, he is guilty of no offense; such mistake being such that the person so acting under the mistake would have been excusable had his conjecture as to the fact been correct, and the mistake did not arise from a want of proper care on the part of the person committing the offense. Therefore, if you should believe from the evidence beyond a reasonable doubt that the defendant fired the shot that killed Leslie De Walt, and that the death of said De Walt, was caused by his gun being loaded with shot larger than No. 4, and his death would not have been a probable consequence had he been shot under the circumstances had said gun been loaded with No. 4 shot, and if you further believe that the defendant believed his gun was loaded with No. 4 shot, and its being loaded with larger shot than No. 4 shot was a mistake as to him, and such mistake did not arise from a want of proper care on his part, and that, laboring under such mistake, the defendant fired his gun with no specific intent to hit any one, or only to alarm the prisoners who were escaping, if such was the case, and he did so fire his gun, and under such circumstances killed Leslie De Walt, then such killing would be excused on account of such mistake of fact, and you will acquit the defendant; and, if you have a reasonable doubt of defendant’s guilt hereunder, you will give him the benefit of such doubt and acquit him.”

The question arises: If appellant’s gun had, in fact, been loaded with No. 4 shot, and such shot in the gun he was using would not have killed deceased at the distance he was from appellant, yet the shot struck deceased, would appellant be guilty of any character of offense, even though in firing the shot he had no intent to kill? If he would have been guilty of any character of offense, the court properly refused the charge. If, as a matter of law, one shoots a gun, with no intent to kill, loaded in a manner he did not believe he could kill, yet also knowing that it was loaded with a character of shot that would inflict injury, would he be entitled to be acquitted of any and all character of offenses? We do not think so, and the court, we think, properly held that under such circumstances he would be guilty of negligent homicide, and submitted that issue to the jury, in a charge in which there is no room for complaint. Our Code provides:

“Art. 688. Homicide by negligence is of two kinds — 1. Such as happens in the performance of a lawful act; and 2. That which occurs in the performance of an unlawful act.
“Art. 684. If any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty of negligent homicide of the first degree.
“Art. 685. A ‘lawful act’ is one not forbidden by the penal law, and which would give no just occasion for a civil action.
“Art. 686. To constitute this offense there must be an apparent danger of causing the death of the person killed, or some other.
“Art. 687. The want of proper care and caution distinguishes this offense from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.
“Art. 688. Throwing timbers by a workman from the roof or upper part of a house in a public street or highway, or where a number of persons are known to be around the house; or discharging firearms on or near a public highway, other than a street in a town or city, in such manner as would be likely to injure persons who might be passing, are examples of negligent homicide of the first degree, in case of death resulting therefrom. If death is caused by the careless discharge of firearms in a public street of a town or city the offense will be of a higher degree.
“Art. 689. To bring the offense within the definition of homicide by negligence, either of the first or second degree, there must be no apparent intention to kill.”
“Art. 692. The definitions, rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions :
“Art. 693. Negligent homicide of the second degi'ee can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.
“Art. 694. Within the meaning of an ‘unlawful act’ as used in this chapter are included— 1. Such acts as by the penal law are called misdemeanors;' and, 2. Such acts, not being penal offenses, as would give just occasion for a civil action.”
“Negligent homicide,” it is thus seen, is a killing which can only be predicated upon facts showing no intention to kill. Appellant swears he had no intention to kill, and there is testimony in the record that if the gun had been loaded with No. 4 soft shot, it might not have killed the distance the two were apart. It lias been said that negligent homicide of the second degree, is a homicide which occurs in the performance of an unlawful act when the unlawful act does not arise above the grade of a misdemeanor, and where the evidence would warrant the jury in concluding that in the performance of the act there was no apparent intention to kill. Robins v. State, 9 Tex. App. 666; McConnell v. State, 13 Tex. App. 390; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647. This case shows appellant intended to fire the gun, and shows further that, if he believed it would not kill, loaded as it was, yet he knew it would inflict injury, and, if he intentionally shot at deceased with such a weapon under such circumstances, he would be guilty of a misdemeanor if he had not killed, and, as he did kill, he would be guilty of negligent homicide in the second degree. On the other hand, if he did not intend to shoot at deceased, and did not intend to inflict any injury on him, yet he intentionally fired the gun (as all the testimony shows he did), our statute provides that the discharge of firearms on or near a public highway in such a manner as would likely injure persons who might be passing, and death resulted therefrom, is negligent homicide of the first degree; and, further, that even though one be engaged in a lawful act, yet by negligence and carelessness cause the death of another, he is guilty of negligent homicide of the first degree.

There is no qúestion in the case of any accidental or unintentional shooting the gun. The testimony of appellant, and all the testimony, shows that he intentionally fired the shot. As to his intent in shooting it is a question under the evidence, but the question of whether he intended to kill the deceased is not an issue in negligent homicide of the first degree. If he intentionally shot the gun, and by negligence and carelessness had it pointed at the deceased when he fired it, the shot hitting and killing deceased, he would be guilty. Appellant apparently has not taken into consideration the fact that negligent homicide is based wholly upon the theory that the evidence must show there was no intent to kill by an act intentionally done. Accidental homicide arises only when the act which caused the death was unintentionally done. There is nothing in this record to raise the issue that appellant did not intend to shoot, therefore the court did not err in refusing the special instruction to acquit under the facts stated in the special charge, because appellant would not be entitled to an acquittal under such state of facts. The county convicts were fleeing in front of him; he intentionally shot his gun, and killed one of them. Either by negligence in holding his gun, in having it pointed at the convicts at the time, or by intention, the shot struck De Walt, and under either of such circumstances the special charge requested was not the law of the case.

As the court gave appellant’s special charge No. 8, it was not necessary to give charge No. 2. Charge No. 8 reads;

“Gentlemen of the jury, you are further instructed in connection with my main charge that if you have a reasonable doubt from all the testimony before you as to whether the shot that killed Leslie De Walt, if you believe beyond a reasonable doubt that he was shot and killed, was fired by Bob Craven, and not by the defendant, Jack Egbert, it is your duty to resolve such doubt in favor of the defendant and acquit him in this case.”

This charge fully covered that phase of the defensive testimony.

As appellant was found guilty of manslaughter only, the lowest penalty being assessed, there could be no error in overruling the motion for a continuance. The absent testimony could and would bear only on the issue of manslaughter.

We readily agree with the contentions of appellant that, if a case rests wholly upon circumstantial evidence, the court must so instruct the jury, that it is the duty of the court to submit in his charge every issue raised by the testimony, and that the defendant is entitled to have affirmatively submitted matters of defense, but we are of the opinion that the court did in his main charge, and the charges given at the request of appellant, submit every issue raised by the testimony, and submit affirmatively the defensive issues, and we are further of the opinion that there is direct testimony in the record that appellant fired the fatal shot, and therefore no charge on circumstantial evidence was called for.

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

      fesfoi: other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAIN v. STATE.
    (No. 3514.)
    (Court of Criminal Appeals of Texas.
    May 5, 1915.)
    1. Intoxicating Liquors <&wkey;148 — Criminal Pkosecution — Elements of Offense.
    To secure a conviction under the Allison Bill, prohibiting the shipment of intoxicating liquors into local option territory, it is necessary that some of the provisions with regard to the illegal shipment, transportation, and reception of intoxicating liquor in such territory be violated.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Dec. Dig. &wkey;>148.]
    2. Intoxicating Liquors &wkey;>146 — Criminal Prosecution — Local Option Statute.
    That a person, upon the solicitation of another, attempts to procure intoxicating liquors for him, but does not himself solicit the giving of an order therefor, is not a violation of the law against soliciting or taking orders, under the Allison Bill, prohibiting the shipment of intoxicating liquors into local option territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. <&wkey;>146.]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    B. K. Bain was convicted of unlawfully soliciting and taking orders for intoxicating liquors in local option territory, and he appeals.
    Reversed and remanded.
    Fred Pearce, of Plainview, and A. J. Fires, of Childress, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under a count in the indictment charging him with unlawfully soliciting and taking orders for intoxicating liquors from Jim Rhae in Hale county. It sets out the usual allegation that local option was in effect in the county. There are quite a number of questions presented for review, which will not be discussed, for the reason we do not believe the state made out a case.

Recognizing the fact that the majority of the court have held that what is known as the Allison Bill is constitutional, that question is not discussed. The Allison Bill was enacted for the purpose of preventing the shipment of intoxicating liquors, except for purposes stated in the act, into local option territory. It also punishes, under section 6 of the act, parties who solicit or take orders for such shipment of intoxicating liquors. In order to bring the party within the purview of this statute, he must solicit or take orders for the purpose of shipment, transportation, or carrying intoxicants into the local option territory. That act does not undertake to punish violations of the local option law in local option territory. That is provided by other statutes. So, in order to secure a conviction under the provisions of the Allison Bill, it seems to be necessary that some of the provisions with regard to the illegal shipment, transportation, reception, etc., of intoxicating liquors in that territory be violated. The facts in this case do not bring it within the rule of that statute.

Appellant is alleged to have solicited orders from Rhae. Rhae’s testimony for the state is, in substance, that he was in town and drinking, and wanted whisky, and asked appellant if he could not “rustle” or get him some whisky. Appellant finally told him he would try. One witness testifies that he saw the parties drinking something he supposed to be whisky, but Rhae testified he got no whisky, and appellant secured none for him. If appellant had obtained whisky for Rhae as his agent, he would not be guilty of violating the local option law under the rule of agency. If he himself had furnished the whisky to Rhae as a sale, he would have violated the local option law; hut the evidence does not show that he solicited Rhae to give him an order, but that all the solicitation, whatever it may have been, was from Rhae to appellant, and not from appellant to Rhae. It did not involve the idea of shipment of whisky from one point to another. It only involved the question of securing the whisky then and there. It was to be an immediate transaction. There was no order given, and none asked. Under those circumstances, we are of the opinion the law of soliciting or' taking orders under Allison Act has not been violated.

Without going further into this question, we hold that the state has failed to make a case; therefore the judgment is reversed, and the cause remanded.
      ©a^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BECKHAM v. STATE.
    (No. 3535.)
    (Court of Criminal Appeals of Texas.
    May 5, 1915.)
    1. Homicide &wkey;>209 — Dying Declaration.
    As the statutory requisites of a dying declaration are merely that the declarant was conscious of approaching death and believed there was no hope of recovery, that the declaration was voluntarily made, that it was not in answer to interrogatories calculated to lead deceased to any particular statement, and that at the time of making it the declarant was of sane mind, a statement made by deceased and reduced to writing is admissible in evidence, although because of weakness it was not signed by him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 441; Dec. Dig. &wkey;?209.]
    2. Homicide <&wkey;207 —Dying Declaration-Admissibility.
    A dying declaration made by deceased in response to questions by the attending physician as to whether deceased knew who shot him, and if the man who shot him knew whom he was shooting, is not inadmissible as being made in response to interrogatories calculated to lead to any particular statement.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 439; Dec. Dig. &wkey;3207.]
    3. Homicide <&wkey;203 — Evidence—Dying Declarations.
    Where deceased, on being informed by the attending physician that he had no hope of recovery, stated that he did not think so either, but wanted the physician to do all he could for him, a dying declaration made thereafter is not inadmissible on the ground that deceased had a lingering hope of recovery.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dee. Dig. &wkey;203.]
    4. Homicide <&wkey;309 — Trial—Instructions.
    Where there was no evidence of antecedent menaces, quarrels, or threats or anything else tending to reduce the shooting to manslaughter, the denial of an instruction submitting that issue was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. &wkey; 309.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    William Beckham was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The first contention is that the court erred in permitting the alleged dying declarations of deceased to be introduced in evidence. The record on this matter is as follows: Dan Walker testified:

“This is a statement written up there where Matt Roberts was, by Dr. Kavanaugh, about 4 o’clock on Sunday morning, and read to Matt and signed by Dr. Kavanaugh and myself as witnesses, and is supposed to be the dying statement of Matt Roberts. I was present when he made that statement and witnessed this statement. The doctor told him that he thought he would die. When the physician told him that he thought he would die, Matt Roberts said, ‘Well, I think so too, but I want you to do all you can for me.’ He just said to him that he didn’t want him to quit trying to save him. I think the doctor said, T don’t think there is any chance for you to live.’ And he agreed with the doctor, but wanted him to do all that he could. The doctor asked him if he wanted to make a statement, and told him that it would be used as a dying statement, and he said that he wanted to make a statement. The doctor asked him two questions. He asked him if he knew who shot him, and if the man that shot him knew who he was shooting, and the negro replied in the affirmative to both questions. The doctor asked him if he wanted to make a statement, and he replied in the affirmative, and the •doctor told him that he was in a dying condition. That was just about 4 o’clock. The negro knew what he was talking about; he was perfectly rational.
“Court: I am going to admit the statement.
“McDonald: We object to this because we don’t think it was the deliberate act of the deceased, and that the state didn’t confine, itself to the rule in qualifying the statement; the negro didn’t sign the statement at all.
“Witness: Dr. Kavanaugh wrote the statement out, and I made the suggestion that the negro was too weak to sign it, and the doctor said, ‘You and I will just sign it as witnesses.’
“McDonald: We object for the further reason that it is not signed at all.
“The Court: All right, I will admit it. (Defendant excepts.)
“The state offers in evidence the dying statement of Matt Roberts, as follows: ‘I had just taken Abe home — he was drunk — and had come back to see about Clyde, and had started him off, and had come back to get my hat, when he shot me. We had been drinking a little. We had never had a cross word. I was looking right •at him when he shot me. Willie Beck shot me. He said, “You son of a bitch, don’t you come back in here.” ’ ”

It will be noticed that the first objection made is that the statement was not signed by deceased. The court did not err in overruling such objection; for even oral evidence is admissible when the statement has not been reduced to writing. Black v. State, 1 Tex. App. 368; Roberts v. State, 5 Tex. App. 141. In the case of Krebs v. State, 8 Tex. App. 1, it was held that, where the dying declaration has been reduced to writing, the loss of-it must be shown before evidence of its contents is admissible, and in this case, the statement having been reduced to writing, the written statement, and not oral evidence of its contents, should have been, and was, admitted. The statute does require that the statement be signed by the deceased. It is better that he sign it, but, if too weak, as the evidence in this case shows, the fact he had not signed it would not render it inadmissible, if the evidence should show he, in fact, made the statement or declaration. There are only four requisites required by the statute: (1) That' at the time of making the declaration he was conscious of approaching death, and believed there was no hope of recovery; (2) that such declaration was voluntarily made, and not through persuasion of any person; (3) that such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement, and (4) that he was of sane mind at the time of making the declaration. Under the evidence in this case there can be no doubt of the sanity of the' deceased. That the doctor asked him two questions — if he knew who shot him, and if the man who shot him knew who he was shooting — would not render the declaration inadmissible. The questions nor either of them were calculated to lead him to make any particular statement. Brande v. State, 45 S. W. 17; Taylor v. State, 38 Tex. Cr. R. 552, 43 S. W. 1019; Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330. The only serious question is: Does the evidence manifest that deceased knew he was in a dying condition. Specific objection on that ground seems not to have been made in the trial court, unless it be embraced in the general objection “that the state didn’t confine itself to the rule in qualifying the statement.” This, taken in its broadest sense, might embrace each requisite of the statute. The witness testified that the doctor told deceased he .thought he would die, when deceased replied, “I think so, too, but I want you to do all you can for me,” the doctor replying, “I don’t think there is any chance for you to live.” Appellant’s contention that deceased’s language evidenced a lingering hope of recovery seems to have been held adversely to him by this court in the case of Hunnicutt v. State, 20 Tex. App. 638. Anyway, in this case appellant himself testifies they had been friends. Several witnesses testify that deceased had • come after his hat, and all the testimony corroborates the deceased in the statement he was looking at appellant when shot, and that appellant shot him.

The only exception made to the court’s charge is that he erred in 'failing to submit the issue of manslaughter. Appellant prepared and submitted a special charge on that issue, and, if the evidence raises the issue of manslaughter, the question is properly presented. We have carefully studied the record, and we are of the opinion that the evidence does not raise the issue. There were no antecedent menaces, quarrels, or threats, shown, and the circumstances occurring at the time are not of the character which under our statute would raise that issue. And, tlie court not submitting the issue of manslaughter, of course, it was not necessary nor proper to submit to the jury the question of whether or not they would suspend the sentence; for the jury is not authorized to do so in a murder case.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Kex-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    BECKER v. STATE.
    (No. 3533.)
    (Court of Criminal Appeals of Texas.
    May 5, 1915.)
    Criminal Raw <§=51092, 1099 — Appeal — Bills op Exception — Statement op Pacts —Time op Piling.
    Appellant was tried during a term of court which adjourned January 23, 1915. During the term no order was made authorizing the filing of a bill of exceptions or a statement of facts after term time. On February 12th appellant filed a bill of exceptions. On February 22d, in vacation, the court extended the time for filing a statement of facts for 30 days. The statement was not filed until March 29th. Meld, that the bill of exceptions and statement of facts could not be considered, because filed too late and without an order permitting it during term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. <§=>1092, 1099.]
    Appeal from Fayette County Court; George Willrich, Judge.
    Adolph Becker was convicted of simple assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Upon an indictment, properly transferred to the county court, appellant was prosecuted and convicted of simple assault, with the lowest penalty assessed.

The term of court at which he was tried convened on January 4, and adjourned on January 23, 1915. During the term no order was made authorizing the filing of a statement of facts or bills of exceptions after term time. On February 12, 1915, appellant filed his only bill of exceptions. On February 22d, in vacation, the court, at appellant’s instance, entered an order extending the time 30 days longer from that date for the filing of a statement of facts. What purports to be a statement of facts was not filed until March 29,1915. The Assistant Attorney General moves this court to strike out and not consider said bill of exceptions and statement of facts, because filed too late and without any order permitting it during term time. Under the statute and the uniform decisions of this court, this motion must be sustained.

However, we might say that we have read both the bill and the statement of facts. Clearly, if we could consider the bill, as qualified by the court, it presents no error at all. The only question raised, so far as the statement of facts is concerned, is the claimed insufficiency of the evidence to sustain the verdict. If we could consider it, it would show that the evidence amply sustains the verdict. So that, if we could consider either or both the bill and statement of facts, no error is presented.

The judgment is therefore affirmed.