author: HIGGINS, J.

text:
    R. B. SPENCER & CO. v. BROWN et al.
    (No. 714.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied Dec. 6, 1917.)
    1. Mechanics’ Liens @=13 — School Building — Severance from Realty.
    Under Rev. St. 1911, art. 2845, -which precludes the fixing of a lien upon school property, although a rock schoolhouse constituted a permanent fixture upon the land, and was a part thereof, where the manifest intention of school trustees, under written contract for completion -of addition to a school building, was to vest title in the contractor, it would constitute a severance, and for materials 'furnished the contractor for reconstructing the rock schoolhouse plaintiff had the right to a lien, although the contractor had sold his interest in the building prior to the time the materials were furnished, where the sale did not become effective until later.
    2. Schools and School Districts @=65 — Sale of Property— Statute.
    Rev. St. 1911, art. 2846, requiring order of commissioners’ court for sale of school property, relates to common school districts, and is inapplicable to independent school districts.
    3. Schools and School Districts @=74— Sale of Property — Consent of State Board of Education — Ratification.
    In August a school district agreed in writing to give a contractor a certain amount of cash, a stone building, etc., for completing an addition to a school building. The work was completed, but no consent of the State Board of Education was procured for a sale of the stone school building, as required by Rev. St. 1911, art. 2873, until about two months later. Held, that the resolution of consent of the Board of Education, authorizing sale, operated retroactively and made the contract with the contractor effective as of date of contract.
    4. Schools and School Districts @=74 — Sale of Property — Authority by State Board — Construction.
    Under resolution of State Board of Education giving school trustees power to sell part or all of a 10-acre tract upon which was located an old schoolhouse, trustees could sell schoolhouse alone.
    5. Schools and School Districts @=65 — Sale of School Property — Deed—Sufficiency.
    Rev. St. 1911, art. 2873, requiring deed from school board to recite resolutions of trustees and State Board of Education as to sale, is directory, and a failure to incorporate such resolutions does not nullify conveyance.
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by R. B. Spencer & Co. against J. G. Brown and another. Judgment against defendant named for the amount of the account sued for, but denying foreclosure of lien, and plaintiffs appeal.
    Reversed and rendered.
    Hickman & Bateman, of iStephenville, and Lattimore, Bouldin & Lattimore, of Et. Worth, for appellants. Chandler & Pannill, of Stephenville, for appellees.
   HIGGINS, J.

On August 8, 1914, the board of trustees of the Lingleville independent school district entered into a written contract with J. G. Brown by the terms of which Brown agreed to erect and complete an, addition to the public school building as per plans and specifications, the board agreeing to pay Brown the sum of $717 in cash and two old school buildings, being a rock building located at Lingleville, and the building known as the Antioch Building, together with three acres of land upon which the Antioch Building is located. Brown was to have the privilege of using, in the construction of the addition, all materials; that were sound and in. good condition in the old buildings. The contract is not skillfully drawn, but the legal effect thereof is as indicated. This contract was performed by Brown. The board of trustees of the Bosque Presbyterian .Church, being advised that Brown had acquired the right to the rock building mentioned above, made an oral agreement with the board of trustees of the Lingleville school district, whereby the latter agreed to convey to the church two and one-half acres of land upon which the rock building was situate, and the board of trustees of the church also made an agreement with Brown whereby Brown agreed to fit up and complete the old rock building as a church for the use of the church. The board of trustees of the church agreed to pay Brown $650 in money and convey to him a lot in Lingleville. This contract between Brown and the trustees of the church was in writing, but was lost and was not offered in evidence. The contents thereof were testified to by the trustees and its substance is as indicated. The two contracts made by the trustees of the Ptesbyterian Church were made in the month of August, and in dealing with Brown they evidently regarded and treated with him as the owner of the rock building. They made the agreement with Brown upon the condition that the trustees of the school district would sell to them the land upon which the building was situated. At the time the church trustees contracted with Brown, the rock building was in a dismantled condition, the roof and all building material in the second story thereof having been removed. The walls were then about 10 feet high, and with these walls the building was reconstructed by Brown as a church, and delivered to the Presbyterian Church and the trustees thereof. In the construction of the church building, Brown purchased his material from the appellants and failed to pay for same. Appellants filed their account for record, and gave the notice required by law, in order to fix a materialman’s lien upon the church building and the ground upon which it was situate, such account being filed and notice given within the time and in the manner required by law. The trustees of the church conveyed to Brown the lot which it had contracted to convey to him, and also paid in cash or by note the other consideration agreed upon by them for the construction of the church building. The material was furnished to Brown by appellants during the month of September. By deed dated October 31st, the board of trustees of the Lingleville independent school district conveyed to the trustees of the church, for a consideration of $125 cash, the 2%-aere tract of land upon which the above-mentioned rock building was situate. At the time the board of trustees of the Lingleville independent school district made the above-mentioned contracts with Brown and with the trustees of the church, no order had been made by the commissioners’ court of that county prescribing the terms of sale of the rock building or of the land, nor had the consent of the State Board of Education been obtained to the sale of the house or the land. Some time in October, apparently about the 19th day thereof, or,, in any event, prior to the date of the above-mentioned deed, the State Board of Education made an order which reads as follows:

“Resolved by the State Board of Education of Texas that permission is hereby granted to the board of school trustees of Lingleville independent school district to sell to the highest ,bidder,for the purpose of investing the proceeds in more convenient and desirable school property, the following described property:
“All or any part of a ten-acre tract of land, known as the old school ground, for the purpose of investing the proceeds in more desirable school property.”

The above-mentioned 2%-acre tract of land upon which the old rock building was situate seems to be treated by the parties as being embraced within the 10-acre tract of land referred to in the foregoing resolution of the State Board of Education. The board of trustees of the church, in their dealing with Brown and with the board of trustees of the independent school district, seem to have treated and regarded Brown as the owner of the rock building, and the board of trustees of the independent school district as the owner of the land. In any event, the church trustees, in dealing with the school trustees, knew of Brown’s right or claim to the rock building. In contracting with Brown, the church trustees did so upon condition that they could secure title from the school board to the 2½ acres of land, and having obtained an oral agreement from the school trustees to so convey the land, the contract with Brown for the repair and completion of the rock building was made and performed by Brown and the church trustees. This suit was filed by appellants to recover of Brown the purchase price of the material furnished and for foreclosure of a materialman’s lien upon the building and ground against Brown and the church. Judgment was rendered in their favor against Brown for the amount of the account and foreclosure of the lien claim denied, and from this judgment this appeal is prosecuted. The date of the completion of the repairs upon the rock building by Brown is not definitely shown, but it was some time in the month of -September, about the 28th day thereof, when it was completed and turned over to the church.

Opinion.

Upon the facts stated, we hold that Brown became the owner of the old rock house and the repairs thereto were made by him as such owner. Appellants having furnished the material to him used in repairing the house, they acquired a lien thereon under the Constitution and statutory laws of our state. It thus follows that appellants were entitled to a foreclosure of their lien upon the building and an order directing its sale. The purchaser at such sale will have the right to remove said building within a reasonable time from the date of the purchase under the provisions of article 5629, R. S.

Appellees contend that the building was a permanent fixture upon the land and a part of the realty, and that title thereto remained in the board of trustees of the Lingle-ville independent school district until October 31st, upon which date title passed to the church by the conveyance above mentioned. It is asserted that since the title to the land and building was vested in the board of trustees of the Lingleville independent school district at the time the material was furnished for its repair, that, therefore, no lien could attach to the building under the provisions of article 2845, R. S., which precludes the fixing of a lien for material upon school property, and that when the church acquired the deed from the board of trustees they therefore acquired the same free from any lien.

It is true the rock building constituted a permanent fixture upon the land and was a part of the realty: But by contract of sale the owner may sever such a fixture from the realty without a physical detachment, making a constructive severance. 11 R. C. L. 1066; 19 Cyc. 1010; Johnston v. Mtg. Co., 129 Ala. 515, 30 South. 15, 87 Am. St. Rep. 75.

The manifest intent of the contract between the trustees of the school district and Brown was to vest title to the rock building in Brown, and this would constitute a constructive severance. Since this contract was in writing, it was not within the scope of the statute of frauds. But appellees further contend that Brown did not become the owner ¡of the building under his contract with the school board, because no order had been made by the commissioners’ court of the county prescribing the terms of the sale, as required by article 2846, R. S., nor had the consent of the State Board of Education to such sale been obtained, as required by article 2873, R. S.

Article 2846 has no application, because the school district was an independent school district. Said article appears in the Revised Statutes in chapter 15, title 48. This chapter relates to common school districts. Originally this article was section 86 of chapter 124, Acts of the Twenty-Ninth Legislature, p. 263. It there appears under the subtitle “School Houses and School Supplies” of the title “Common School Districts.” It is thus manifest that this article relates to the sale of property belonging to common school districts.

The sale of school property belonging to the Lingleville independent school dis- • trict is, however, governed by the provisions pf article 2873, R. S., which requires the consent of the State Board of Education. The State Board of Education did adopt a resolution, which was quoted above. This resolution did not in any wise undertake to prescribe the details of the sale which might be made of the land by the school board, and was sufficiently comprehensive! to authorize the school board to make the sale thereof in the form of applying the value thereof to the construction of a new building. That is what was done by the¡ agreement between the school trustees and Brown. This resolution of the State Board of Education constituted sufficient authority to the hoard of trustees to pass title to the school building to Brown, but in this connection it will be noted that this resolution was adopted subsequent to the date of the contract between the school board and Brown. Since said consent of the state board did not exist at the time of the contract with Brown, appellees contend he did not obtain the title to the building, and, was therefore not the owner thereof, so as to enable him to fix a lien thereon for materials furnished. We do not think that a deed to a house or land executed by the board of trustees) of an independent school district without the previously obtained consent of the State Board of Education would be such an absolute nullity as would preclude the application of the principles of ratification. Undoubtedly, however, it would be lacking in an essential necessary to its complete validity, viz. the consent of the State Board to the sale, but if such consent be subsequently obtained, then we are of opinion and hold that it would operate as a ratification of an act done without authority. In the instant case, the consent of the State Board of Education given in October, authorizing the board of trustees of the Lingle-ville school district to sell all or any part of the land, was sufficient to validate the contract of sale theretofore made between the board of trustees and Brown; it operated retroactively, and made the contract with Brown as effective as though it had been authorized previous to its making. It may be conceded that, at the time the material was furnished to Brown by appellants, Brown’s title to the house was lacking in complete validity because of the failure to obtain the previous consent of the State Board of Education, but he at least had an inchoate right or title to the property, which was after-wards perfected, and he should be considered the owner of the building at the time the material was furnished, within the constitutional and statutory provisions relating to materialman’s liens. Cameron & Co. v. Trueheart, 165 S. W. 58; Schultze v. Brewing Co., 2 Tex. Civ. App. 236, 21 S. W. 163. In Cameron & Co. v. Trueheart, supra, it was held that the purchaser of land under a verbal executory contract, which was subsequently carried out by the giving of a deed, was'the owner at the time the material was furnished. The purchaser in that case had a title which was lacking in a particular essential to its complete validity, viz. a written conveyance. Here Brown had a title to the rock house, which was in writing, but which also was lacking in a particular essential to its validity, viz. the consent of the State Board of Education. In Cameron v. Trueheart the imperfect title was perfected by the execution of a written conveyance given subsequent to the furnishing of the material, and the grantee was held to have been the owner at the time the material was furnished, within the meaning of the statute. 1-Iere Brown’s title was perfected by the resolution of the State Board passed subsequent to the furnishing of the material, and he, too, should be re-. garded as the owner of the building at the time the material was furnished, within the meaning of the statute, and it is so held.

It will be noted that the resolution of the State Board of Education gives the board of trustees the authority to sell all or any part of the 10-acre tract of land. The house was a permanent fixture, and constituted a part of the land, and was therefore within the purview of the resolution.

Article 2873, R. S., says the president of the school board “shall execute his deed to the purchaser for the same, reciting the resolution of the State Board of Education giving consent thereto, and the resolution of the board of trustees authorizing such sale.” In this connection, the point is made that the agreement between the board of trustees and Brown recited no such resolutions. It is not believed it was the intention that such provision should nullify completely a deed executed without reciting the resolutions mentioned. It was intended, doubtless, that the deed upon, its face should disclose the authority by which it was executed; but this provision is regarded as directory and not mandatory, and a failure to incorporate such resolutions in a conveyance, does not nullify the same. Upon the facts stated, it is held that Brown became the owner of the house in question, and, since the appellants furnished to him material for its repair, they are entitled to a lien thereon. The judgment of the court below will be reversed, and the judgment here rendered which should have been entered by that court, viz.: Against Brown for the amount of the account, in the sum of $159.92, with interest from October 1, 1914; and against all defendants establishing and foreclosing the materialman’s lien in favor of appellants against the rock house situate upon the 2½ acres of land conveyed to the board of trustees of the Bosque Presbyterian Church, U. S. A., by the trustees of the Lingleville independent school district, which ■deed is dated November 2, 1914, and recorded in the deed records of Erath county, Tex., in volume 126, at p. 369, and said house is ordered sold in satisfaction of the judgment rendered.

Reversed and rendered.

WALTHALL, J., not sitting, absent on Committee of Judges assisting the Supreme Court.
      @=For otter oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    BOYLE v. STATE.
    (No. 4682.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. Claud Boyle was convicted of burglary, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary. The record is without statement of facts or bill of exceptions. There is nothing in the motion for new trial that can be considered. As the record is presented, the judgment will be affirmed.


author: PRENDERGAST, J.

text:
    GARDINER v. STATE.
    (No. 4716.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Appeal from Dallas County Court at Law; W. L. Thornton, Judge. L. M. Gardiner was convicted of aggravated assault, and he appeals.
    Affirmed.
    B. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for an aggravated assault, without any statement of facts or bills of exceptions. Nothing is presented for review. The judgment is affirmed.


text:
    MEDFORD v. STATE.
    (No. 4722.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge. Darrell Miedford was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of burglary. The record shows the case was properly tried without even any claimed error in the trial, as there are no bills of exceptions and no complaint to the charge of the court. The evidence is full and complete, showing the commission of the offense as alleged. We see no necessity of reciting the testimony. The judgment is affirmed.


text:
    SCRIVENOR v. STATE.
    (No. 4668.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. W. S. Scrivenor was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of robbery. There is no statement of facts nor bill of exceptions. In the absence of these there are no questions which can be reviewed. The judgment is therefore affirmed.


author: HODGE'S, J.

text:
    WINN et al. v. TOWN OF GILMER.
    (No. 1853.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 8, 1917.)
    Appeal from District Court, Upshur County; J. R. Warren, Judge. Action between J. C. Winn and others and the Town of Gilmer. Judgment for the latter, and the former appeal.
    Affirmed.
    J. S. Barnwell, of Gilmer, for appellants. Roger Fenlon and T. H. Briggs, both of Gilmer, for appellee.
   HODGE'S, J.

The appellants have failed to file any briefs or present any assignments of error in this case. The appellee, however, asks that the case be affirmed. There appears to be no error of which we are required to take notice, and the judgment of the district court will therefore be affirmed.


text:
    DOZIER v STATE.
    (No. 4586.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    State’s Rehearing Denied Dec. 12, 1917.)
    1. Criminal Law <®=59S(6) — Continuance-Diligence.
    There was no want of diligence denrmng defendant of a right to a continuance because of the absence of a witness on account of illness, where he was served with process in ample time and at the same time all the other witnesses were served, all of whom attended except him.
    2. Criminal Law <®=»'598(6) — Continuance-Diligence.
    Where process was issued for all of defendant’s witnesses at the same time and immediately served on all the witnesses except one, who had left the state on business matters, there was no want of diligence preventing a continuance.
    3. Criminal Law ©=598(2) — Continuance-Diligence.
    There was no want of diligence preventing a continuance in placing process for an absent witness in the hands of a constable instead of the sheriff, where the constable was legally authorized to serve the process and did serve the process on all the other witnesses.
    4. Criminal Law ©=>>595(1) — Continuance-Materiality of Testimony of Absent Witness.
    Where on a trial for homicide the state contended that deceased was killed with a pistol owned by defendant’s father, defendant was entitled to a continuance because of the absence of his father on account of illness, who would have testified that he kept the pistol in a trunk which was locked, and the key to which he carried himself, that nobody was permitted to go into the trunk, and that it was impossible for defendant to have gotten the pistol out of the trunk without such key.
    5. Criminal Law ©=>404(4) — Demonstrative Evidence — Clothing Worn by Murdered Person.
    Where there was but one shot fired, and there was no question but that deceased was shot squarely in the back of the neck just below the edge of the collar, the bullet coming out under his jaw, the bloody clothing worn by him at the time of the homicide could serve no useful purpose, and were not admissible in evidence.
    6. Homicide ©=>2¡62 — Trial — Exhibiting Clothing Worn by Deceased.
    Where, though such clothing were not directly introduced in evidence, they were handed to witnesses who were questioned concerning them and exhibited and explained at length by the witnesses in the presence of the jury, error was committed.
    7. Criminal Law ©=3371(4) — Admissibility of Evidence — Other Offenses.
    Where defendant and deceased had been doing business with each other, and defendant had given deceased checks which were known to be in his pocketbook at the time he and defendant left his home shortly before the homicide, but were not found on deceased’s body, and another check torn to pieces was found by officers in trailing their tracks, checks which brought up an issue as to whether they were forgeries were properly admitted.
    Appeal from District Court, Young County ; Wm. N. Bonner, Judge.
    Puller Dozier was convicted of murder, and lie appeals.
    Reversed and remanded.
    Thos. G. Binkley and C. W. Johnson, both of Graham, for appellant. Leslie Humphrey, Dist. Atty., of Wichita Palls, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and allotted 30 years’ confinement in the penitentiary.

The record is voluminous and contains a great many details unnecessary to state. The case in brief is that appellant and deceased, young men living in the same neighborhood, had -long been Intimate friends, socially and in business, deceased being 21 and appellant 18 years of age. There had been trading between them, and checks passed from one to the other. Appellant had bought cattle from deceased for which he had given a check for $150. The state shows deceased in possession of that check on the morning previous to the supposed time of the killing on the following evening. When his body was found this check was missing. On the morning previous to the killing in the evening appellant was at the house of a sister of deceased, and remained until about 2 o’clock, and assisted in hanging wall paper. It is shown that deceased called appellant over the phone twice before appellant agreed to go to the home of the deceased. The mother of deceased testified that she did not see appellant, but heard his voice as he rode up to the house calling to the deceased, asking him if he was ready, or words to that effect. They were supposed to have ridden together from the home of deceased. This was something like perhaps between 2 and 3 o’clock in the evening. Deceased was never seen alive afterward. On the morning of the day on which deceased was killed appellant borrowed a shotgun from his brother-in-law, and returned it the following day. The sister of deceased testified that while appellant was at her house assisting in hanging the wall paper she did not notice any pistol about him, and if he had one she did not discover it. It is in evidence that appellant sought to, but failed to, buy a pistol some time previous to the homicide. This was proved by a merchant Appellant was never seen with a pistol, and the record discards the idea that he carried a shotgun on the day of the homicide. The deceased was killed by being shot in the back of the head with a rifle or pistol. The state’s theory was that deceased was killed by a pistol owned by appellant’s father, and the case was prosecuted only upon that theory. There is considerable evidence in the record in regard to tracks of horses and men. It seems that they trailed these tracks on a road leading east from deceased’s home to the Brazos river. There the riders seemed to have alighted and led their horses across the river, the water being shallow and only 15 or 20 feet in width. There is no evidence that the boots worn by the boys bad been wet, so far as the writer recalls this testimony. After getting through the water there was some evidence of foot tracks on the sand in the bed of the river, the bed of the river being something like 100 yards wide at that point, the water only covering a small portion of it. At a certain point these parties who made the foot tracks, from the testimony mounted their horses. Witnesses testifying in regard to this matter state that the horses began running from that point. The state’s theory from the tracks was that the horse supposed to have been ridden by deceased was in front followed by the horse supposed to have been ridden by appellant. This race continued about a mile. Seven or eight hundred yards of this was through thick brush and briers, brambles and undergrowth. The animal of the deceased the next day was found wandering around, and was shown to have been hardly ridden. No witness, as the writer recalls the record, testified that either of the animals had any scratches or abrasions upon them. After emerging from this thicket they entered rather an open wooded territory and ran by a plum thicket. After passing that a short distance there was found a pool of blood, and deceased’s body was supposed to have been dragged from that point into the plum thicket about 75 yards away, and there left. There is also evidence showing that the animal supposed to have been ridden by deceased was led from there to a wire fence by the rider of the other horse and turned outside. They trailed the tracks of the other horse from that point to the residence of appellant’s father, where the appellant resided. This statement is only thought to be necessary by reason of the application for a continuance.

The state relied upon tracks, and the fact that the boys left the.home of deceased in company riding horses whose tracks fit those that were followed, one being shod all around supposed to have been ridden by appellant, and the other unshod all around supposedly ridden by deceased. The sheriff following these tracks went to the home of appellant’s father and called for any arms that might be in the house. Appellant was not at home, but his father was. His father gave permission to examine the house, and also told the sheriff that he had a pistol in his trunk which he had had a long time. He unlocked his trunk and gave the pistol to the sheriff. This is the pistol around which the state made its case. It was a very large pistol, and showed to have been fired once more or less recently. The testimony is at variance on the question of the length of time prior to this that it had been fired. The father of appellant stated at the time he gave it to the sheriff there was one chamber that had been fired, and that he had fired it, and made mention of the circumstances. The sheriff with a chisel took two shoes from appellant’s horse, one from the left front and the other from the left hind foot. In wrenching them from the feet of the animal the shoes became twisted or warped. The sheriff with a hammer undertook to straighten them. He says he compared these with the tracks be followed, and they fit fairly well. The blacksmith who had shod the horse, whose name was McCann, took the other two shoes from the horse and followed these horse tracks and compared them. He took the shoes off as a blacksmith would, without injury to the shoes, and would have stated if present that they did not fit the tracks; that he followed the same tracks as did the sheriff and compared the shoes with the tracks.

Appellant made an application for continuance on account of the absence of his father . and McCann. The father was served, but was sick, furnishing the certificate of a doctor to that effect, and his inability to attend the trial. There was an affidavit filed to the same effect. McCann had left the state' temporarily on a business errand a day of two before the process could be served. A sufficient statement of the facts expected to be proved by these absent witnesses has been made, except alibi by McCann. The state, to meet this condition, agreed to the taking of the deposition of the father of appellant and let it be used before the jury. Appellant would, not consent to this unless the state would agree that the testimony was true. To this the state would not agree. The contention was also made that the diligence was insufficient. This is the first application, and the diligence is not so strict in regard to the first as it is to subsequent applications for continuance. Certainly it could not be said otherwise because he was served with process in ample time and at the same time all the other witnesses were served, and all attended who were served except the father. We think the evidence shows diligence in the issuance of process for the witness McCann. He lived but a few miles from the courthouse. Process was issued on about the 9th of the month, and the officer immediately served process on those he could find, and his return showed McCann absent. The facts show he had gone to another state on business matters, and would not return for about a month. The state made the contention that the diligence was not sufficient again because process was placed in the hands of a constable instead of the sheriff. We hardly think this to be a serious contention. The constable was legally authorized to serve the process, and successfully did except on McCann. The crucial points in the case under the facts revolved around the pistol and horse tracks. If appellant could show that he did not have this pistol, that his father had it, and under such circumstances it could not have been gotten by him, or used by him, it was important, inasmuch as the state hinged its case upon that particular pistol. The father would have sworn that he had had this pistol a great while; that he kept it in his trunk locked and carried the key himself, and nobody was permitted to go into that trunk; that he kept his private papers and quite a lot of things in the trunk, and kept it locked at all times, and it was impossible for this boy to have gotten the pistol out of that, trunk without this key. His evidence would have excluded possession of the pistol by his son. It might also be added that the state’s contest over the continuance was not well taken except on the question of diligence. This is the statute. We do not gather from this record that either of the witnesses was absent by appellant’s consent or procurement. If the state could have shown that appellant was instrumental in keeping these witnesses away, his application for continuance would have been properly overruled, but there is nothing to justify that conclusion.

There is another question that is reversible. The state introduced the bloody clothes over the objection of appellant. Deceased was shot squarely in the back of the neck and just below the edge of the hair, the bullet coming out in front just under the left jaw. This was the only wound on the body. He had on an overcoat besides his other clothing, and these were introduced before the jury. These clothes could serve no useful purpose. There was no question of the fact that deceased had been shot in the manner indicated. There was but one shot fired. There is a contention by the state that the clothes were not actually introduced in evidence. The bill of exceptions shows that the clothes were handed the witnesses, who were asked to and did explain where the bullet hole passed through the edge of the collar of the overcoat, and some of the other clothing. This was all brought out before the jury, and the clothes were exhibited and explained at length by the witnesses in the presence of the jury, who saw and heard it all. Because the state did not go further and specifically introduce the clothes before the jury, the contention is made that this is not a violation of the decisions with reference to this matter. We think this would be a travesty. These clothes were not admissible, and it was done in such way as to get the facts all before the jury without directly introducing the bloody clothes.

The state, over objections of appellant, was permitted to introduce evidence of checks given by defendant to deceased and by deceased to defendant, two of which brought an issue as to whether they were forgeries. These boys had been doing business with each other, and one of the checks given to deceased by appellant was for' $150 for cattle bought from deceased. It was known that deceased had this check and another in his pocketbook a short time before they rode from the home of deceased. This pocketbook was examined on being taken from the dead body, and the checks were not found in the pocketbook. There was another check found in a cavern fronting on the Brazos river, which had been torn to pieces. This check was for $400. There was some question whether deceased wrote this check, but it was torn up, found by the officers in trailing the tracks and put together, and photographed, and is in the record. We are of opinion, under the circumstances of this case, these matters were introducible. Several reasons might be given, but which we think unnecessary to discuss.

For the reasons indicated, the judgment will be reversed, and the cause remanded.
      ©^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TAYLOR v. STATE.
    (No. 4707.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    1. Witnesses <§=>337(6) — Impeachment.
    The rule that accused’s testimony may be impeached_ by showing previous convictions for theft or misdemeanors involving moral turpitude, is inapplicable to a previous conviction for fighting and disturbing the peace, since such offense involves no moral turpitude.
    2. Cbiminai, Law <§=>1169(11) — Evibence — Impeachment.
    In a theft prosecution, admitting testimony regarding previous convictions of accused constitutes reversible error, where' accused did not testify.
    3. Cbiminai, Law <§=>539(2) — Evidence—Impeachment.
    In a theft prosecution, incriminating testimony given by accused on previous trial for theft is admissible.
    Appeal from Corporation Court, Bowie County; J. K. Linbarger, Recorder.
    Claude Taylor was convicted of theft and appeals.
    Reversed and remanded.
    T. N. Graham and W. T. Williams, both of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the theft of some automobile inner tubes and his ■ punishment assessed at six months in jail. Appellant earnestly contends that the evidence was insufficient to sustain the conviction, in view of the fact that the evidence was wholly circumstantial. However, this court does not pass upon the question because the cause must be reversed on another ground.

It seems, that appellant was first prosecuted for ordinary theft and on that trial he testified. When prosecuted for this offense he did not testify. The court, over his objections, permitted the city attorney to testify what appellant testified on said other trial to this effect, that he had been previously convicted and fined in several criminal misdemeanor eases involving fighting and disturbing the peace, and that he had been tried, convicted and worked his fine out in Miller county, Ark., on the charge of theft of shoes. The law is that when a party himself testifies he can be impeached by showing that he has been previously convicted for theft or a misdemeanor involving moral turpitude, but that such offenses as fighting and disturbing the peace do not involve moral turpitude and cannot be introduced for the purpose of impeaching. However, any such testimony, when admissible, is for impeachment of an accused only, and as the accused in this instance did not testify at all in this case the admission of said testimony against him presents reversible error. Of course, any incriminating testimony given by him in the other caSe could be proved on the trial of this case and as such would be admissible.

Eor the errdr in the admission of this testimony, under the circumstances, the case is reversed and the cause remanded.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PECHT v. STATE.
    (No. 4686.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Weapons <@=>17(4) — Offenses—Evidence.
    In a prosecution of accused for unlawfully carrying a pistol on or about his person, evidence held sufficient to sustain a conviction.
    2. Weapons <@=>13 — Offenses—Defenses.
    One accused of unlawfully carrying a pistol on or about his person cannot excuse the charge on the ground of imminent danger, when he had no such apprehension at the time he armed himself.
    3. Criminal Daw <@=>656(2) — Conduct óf Judge — Admonition to Witness.
    In a prosecution for unlawfully carrying a pistol, where accused, who took the stand on his cross-examination, stated to the examiner that he wanted to be plainly understood and did not wish further examination like that before, an admonition by the court to answer the questions without other statement was not error.
    4. Weapons <@=>17 (5) — Offenses — Jury Question.
    In a prosecution for unlawfully carrying a pistol on or about his person, the question whether accused was at the time a traveler is for the jury.
    5. Weapons <@=>11(2) — Offenses.
    Where a traveler deflects and turns aside from his journey on business or pleasure disconnected with his journey, the fact that he was originally a traveler does not exempt him from punishment for unlawfully carrying a pistol on or about his person.
    6. Weapons <@=>17 (4) — Offenses — Jury Question.
    In an action for the unlawful carrying of a pistol on or about his person, evidence held to warrant a finding that accused was not at the time a traveler, and that, if he had been a traveler, he deflected from his journey so as to lose protection of his status as a traveler.
    Appeal from Williamson County Court; Richard Critz, Judge.
    B. F. Pecht was convicted of unlawfully carrying a pistol on or about his person, and he appeals.
    Affirmed.
    See, also, 192 S. W. 243.
    Dan Moody, of Taylor, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully carrying a pistol on or about his person. The testimony shows that on June 5, 1916, appellant took his trunk and went to Taylor, claiming that he was going from there to Ft. Worth, and perhaps beyond. After he got to Taylor he stored his trunk, and then in a wagon went from Taylor some 11 miles or more in the country. He visited different parties there, going from place to place, and reached a small village called Rice’s Crossing, where he stopped and gob something to eat. About the time he finished eating in the store, J. M. Kuykendall and Tom Avery reached there and went in to get a cold drink. Appellant- then raised a row with said Avery, cursing and abusing him and called him a liar. Kuykendall, Avery’s friend, told Avery he would not take such abuse and cursing, and to get an axe handle and strike him. Thereupon appellant and Kuykendall got into a row, and Kuykendall threw a soda water bottle at him. There were only three witnesses to all this: Kuy-kendall, Tom Avery, and Arthur Barton, the storekeeper. Kuykendall and Avery both swore positively that appellant then drew from his person a pistol, both swearing they saw it, and that he drew it from off his person, and was in the act of presenting it towards Kuykendall at the time. The storekeeper swore that Avery was between him and appellant at the time, and that, while he saw him make a motion as if to draw a weapon, he himself did not see the weapon, because Avery was between him and appellant. The storekeeper further swore that both Avery and Kuykendall said in appellant’s presence that he had a pistol, and Pecht did not deny it.

Pecht himself swore he had no pistol on that occasion or any other. He introduced several witnesses whoPecht himself swore he had no pistol on that occasion or any other. He introduced several witnesses who saw him at other places during the day, and their testimony was to the effect that they did not see any pistol on his person or him have a pistol when they saw him on these different occasions and at these different places other than at said store.

Without doubt the evidence was sufficient to sustain the conviction. Every issue that was raised or claimed to be raised by appellant was submitted by the court to the jury in his charge, to which charge there was no objection whatever.

The state ’at first only introduced Kuykendall, who, as stated, swore positively that appellant had a pistol on his person and drew it on him.

Thereupon the appellant had the jury-retired, and moved the court to instruct the jury to return a verdict of not guilty, claiming that the testimony showed that, if he had -a pistol, he had it in his own proper self-defense, as an attack was being made upon his person, and he claimed that the danger was pressing, and there was no immediate opportunity to have the aggressor placed under arrest, which motion the court correctly overruled.

The law is that an accused cannot justify carrying a pistol on the ground of imminent danger when he had no such apprehension at the time he armed himself. Darby v. State, 23 Tex. App. 407, 5 S. W. 90; Brownlee v. State, 35 Tex. Cr. R. 213, 32 S. W. 1043; Hood v. State, 72 S. W. 592; Thompson v. State, 48 Tex. Cr. R. 146, 86 S. W. 1033. The court, however, submitted this question to the jury for a finding in a charge to which he did not except, and the jury found against him.

Appellant testified in his own behalf. On cross-examination by the attorney for the state this occurred:

“Q. Did you see him at all from the fall prior to June 5th? A. Yes. You mean from the fall until June 5th? Q. Yes. A. No; I don’t know that I saw him. I passed his, place, but never stopped. Q. Huh? A. I passed his place, but I never stopped. Q. Never saw him? A. No, sir. Q. Now, when was the last time prior to last fall when you talked to him? A. This last fall a year ago, you mean? X want to be plainly understood. X don’t want you to do any more like you did before. Q. I don’t know how I did before, but I am going to do as I please about it this time. The Court: Mr. .Witness, you answer the questions that are asked without any other statement. Mr. Moody: Note the defendant’s exception to the remarks of the court. Q. When did you see him last prior to last fall a year ago and talk to him? A. And talk to him? I don’t know that I talked to him nary time between them times. (To which action of the court in so admonishing the said defendant, while a witness in his own behalf the defendant then and there in open court excepted.)”

This shows no reversible error.

Appellant contends that he was a traveler, and that on that account, even if he carried a pistol, as testified to by the state’s witnesses, he had the right to do so as a traveler. This question was also submitted by the court in Ms charge to the jury in every way favorable to appellant, and to which he in no way excepted. It has uniformly been held by this court, as stated by Mi-. Branch in his 1 Ann. P. O. § 976, that “whether or not a defendant is a person traveling is a question for the jury” citing Shelton v. State, 27 Tex. App. 443, 11 S. W. 457, 11 Am. St. Rep. 200, Campbell v. State, 58 Tex. Cr. R. 349, 125 S. W. 893, 21 Ann. Cas. 447, Williams v. State, 74 Tex. Cr. R. 639, 169 S. W. 1154, and Younger v. State, 76 Tex. Cr. R. 243, 173 S. W. 1039, and also that, even though he may be a traveler, where he deflects and turns aside from his journey on business or pleasure disconnected with his journey, the fact that he may be a traveler originally does not exempt Mm from punishment. 1 Branch’s Ann. P. C. § 977, where he collates a large number of casqs. The evidence would clearly justify the jury to find against appellant both that he was not a traveler at the time he carried the pistol on this occasion, but that, even if he was he so deflected from Ms journey on business or pleasure disconnected therewith so as to show that he was not entitled to acquittal on that ground.

The judgment is affirmed.
      <@=>I?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    DAUMERY v. STATE.
    (No. 4743.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Criminal Law @=1063(1) — Appeal — Necessity or Motion fob New Trial.
    Defendant’s motion for new trial was not essential as a basis for his appeal.
    2. Criminal Law @=1090(8) — Appeal—Bill of Exceptions.
    The introduction of testimony charged to have been illegal are matters which could be brought before the Court of Criminal Appeals only by bill of exceptions.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    John Daumery was convicted of unlawfully selling intoxicating liquor in 'a prohibited district, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a judgment condemning him to one year’s confinement in the state penitentiary for the offense of unlawfully selling intoxicating liquo-r in a prohibited district. See Vernon’s Ann. P. C. art. 597.

The statement of facts discloses that there was sufficient evidence to support the conviction. There are no bills of exceptions complaining of the charge of the court as to the receipt or rejection of evidence or other matter touching the conduct of the trial.

A.motion for new trial appears in the record, in which complaint is made of the introduction of testimony charged to- have been illegal, and some complaint is made for failure of the court to consider the motion because filed more than two days after the trial. The motion for new trial was not essential as a basis for appeal. Sessions v. State, 197 S. W. 718. The matters referred to in the motion in this case are such as could only be brought before this court by bill of exceptions. The indictment is regular. No errors have been pointed out.

The judgment of the lower court is affirmed.
      <§=Eor otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PRITCHARD v. STATE.
    (No. 4737.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Criminal Law @=31090(14) — Appeal — Statement of Pacts — Necessity.
    A bill of exceptions complaining of the court’s charge presents nothing for review, where there was no statement of facts showing the evidence upon which the charge was' based.
    2. Criminal Law <@=1090(8) — Appeai>-Ex-ceptions, Bill of — Necessity.
    Under Code Or. Proc. 1911, art. 744, declaring that on the trial of any criminal action the defendant by himself or counsel may tender his bill of exceptions to any decision, opinion, order, or charge of the court, the admission of evidence cannot be reviewed where the point is not presented by bill of exceptions.
    3. Ckiminal Law <§=1090(16) — New Trial— Denial — Pbopbiety.
    In the absence of a statement of facts showing the evidence, the denial of a motion for new trial based on the theory that the jury received evidence after its retirement and considered the same held not to show an abuse of discretion.
    4. Larceny <@=351 (1) — Evidence — Admissibility.
    Proof that accused was in possession of property at any time after it was stolen may be considered by the jury on the question of his guilt.
    Appeal from Eastland County Court; Joe Burkett, Judge.
    Lee ¡Pritchard was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of a misdemeanor theft under $50.

We find no statement of facts, and are therefore not apprised of the evidence. The only bill of exceptions found complains of the court’s charge, and, in the absence of knowledge of the facts, we are unable to determine that there was error in submitting the issues. Vernon’s C. C. P. art. 844, p. 812, note 5, and cases cited.

The motion for new trial refers 'to some evidence which it is claimed was inadmissible. In the absence of bill of exceptions, this matter is not before us for review. C. C. P. art. 744; Vernon’s C. C. P. p. 527, notes 1 and 2, and cases cited.

In the motion for new trial is an allegation that the jury in their retirement discussed the fact that appellant was in possession of the alleged stolen property and failed to explain such possession. This is supported by an affidavit of one of the jurors, and there is an allegation in the motion that this discussion was not based upon evidence introduced on the trial, referring for a verification thereof to the statement of facts. A statement of facts, as above stated, is not before us. The motion states that:

“There is no affirmative evidence in the record showing that appellant was in possession of the property at the time he was arrested.” ■

If there was proof that he was in possession of it at any time after it was stolen, such possession would have been a lawful subject for consideration by the jury. As presented, we are unable to reach the .conclusion that the jury received evidence in its retirement. The court’s order overruling the motion imports a finding to the contrary. The record shows no abusive discretion in overruling the motion.

The judgment of the lower court is affirmed.


author: MORROW), J.

text:
    ALEXANDER v. STATE.
    (No. 4619.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.
    On Motion for Rehearing, Dec. 12, 1917.)
    1. Criminal Law <@=>594(3) — Continuance— Absenoe of Witness — Probability of Securing Testimony.
    There was no abuse of discretion in overruling an application for a continuance because of the absence of a witness, when there was no probability of securing her personal attendance and .ample opportunity to secure her testimony by other means had been afforded and declined.
    2. Criminal Law <@=372 (7) — Issues, Proof, and Variance.
    On a trial for incest, defendant denied the alleged intercourse, and by cross-examination of the prosecutrix and other witnesses endeavored to discredit her testimony and her motives in giving it. She was 14 years old and was unable to testify to an act of intercourse specifically coinciding with the date charged in the indictment, but testified to a series of acts covering about one year, and coming up, approximately, to the date charged. Held, that the court did not err in refusing to exclude evidence of acts of intercourse on dates other than that charged.
    3. Criminal Law <@=1086(14), 1090(8) — Record — Bill of Exceptions — Necessity.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 744, providing that defendant may tender his bill of exceptions to any decision or other proceedings on the trial, and that the judge shall sign such bill of exceptions in order that such decision, etc., may be revised on appeal, the admission of evidence is not before the Court of Criminal Appeals for review in the absence of a bill of exceptions showing that it was introduced.
    4. Criminal Law <@=1092(12, 13) — Bill of Exceptions — Necessity of Approval.
    A bill of exceptions prepared by defendant but not approved by the trial judge or verified by bystanders cannot be considered.
    5. Criminal Law <@=728(5) — Improper Argument-Necessity of Request for Special Charge.
    On a trial for incest with defendant’s daughter, the district attorney in his closing argument stated that defendant after the death of his wife became a wild demon, that this was a case that deserved bitterness, that the more he talked with the prosecuting witness the more he was impressed with her truth, and that defendant never tried to find the author of his daughtér’s shame, and he also called the jury’s attention to “that satanic grin and laugh on his face.” Held, that this argument was not of such a grave character that it could not have been cured by withdrawal in a special charge, and, if defendant. deemed the remarks improper, he should have requested a special charge withdrawing them.
    6. Criminal Law <@=719(3) — Improper Argument-Giving Testimony.
    The argument with reference to counsel’s impression concerning the truthfulness of the prose-outing witness was not within the rule inhibiting ¡ the prosecuting attorney from giving testimony in his argument.
    On Motion for Rehearing.
    7. Criminal Law <§=>913(3) — Grounds tor New Trial — Absence oar Witness.
    Where the application for a continuance to obtain absent testimony is properly overruled for want of diligence, a motion for a new trial j should only be granted because of the absence of such testimony where a conviction arises from the evidence that it is reasonably probable that a more favorable verdict would have resulted.
    8. Criminal Law <§=>956(5) — Motion eor New Trial — Supporting Affidavits.
    The failure to attach, to a motion for a new trial because of the absence of a witness, the supporting affidavit or evidence of such witness, does not absolve the court from the duty of considering the motion if otherwise regular, but bears upon the question whether the trial court committed error requiring a reversal in refusing to grant the motion.
    9. Criminal Law <§=>958(4) — Denial of Motion for New Trlao-Discretion.
    In a prosecution for incest with defendant’s daughter, the application for a continuance stated that an absent witness would testify that the prosecuting witness had asked him to procure poison in order that she might administer it to defendant, her father, so as to be free to have a good time. The motion for a new trial showed that the witness would not testify to such request by the prosecuting witness, hut would testify to such a request by her sister between whom and the prosecuting witness defendant claimed there was a conspiracy. Sold that, as this testimony was not mentioned in the application for a continuance, it could be considered only as newly discovered evidence, and the failure to support the motion by the affidavit or sworn statement of the absent witness, or to satisfactorily account for the' absence of such affidavit or statement, precluded a review of the overruling of the motion.
    10. Criminal Law <§=>944 — Discretion—Denial of Motion for New Trial.
    To require the Court of Criminal Appeals to review the action of the trial court in refusing a new trial for newly discovered evidence, it must appear that the evidence is probably true.
    11. Criminal Law <§=>507(2) — Testimony of “Accomplice.”
    On a trial for incest with defendant’s daughter, another daughter who knew of the crime and failed to disclose it was not an “accomplice.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from District Court, Runnels County; J. O. Woodward, Judge.
    H. F. Alexander was convicted of an offense, and lie appeals.
    Affirmed.
    R. B. Truly and T. T. Crosson, both of Bal-linger, and J. P. Cogdell, of Winters, for axipellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW), J.

This is a conviction for incest, with punishment fixed at confinement in the penitentiary for a period of 10 years.

The other party to the transaction, as charged in the indictment, is Docia Alexander, a daughter of appellant. Her testimony, with corroboration, supports the verdict. No abuse of discretion is shown in overruling ap-j : pellant’s application for a continuance. It appeared from the court’s qhalification that there was no probability of securing the personal attendance of one of the witnesses, and that ample opportunity to procure her testimony by other means had been afforded and declined, and that the other absent witness was present at the hearing of the motion for new trial and was not called upon to verify the truth of the allegations in the motion for a continuance as to his testimony. Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125; Lane v. State, 59 Tex. Cr. R. 595, 129 S. W. 353; Vernon’s C. C. P., p. 320, note 32, and cases cited, also, page 322. In the application for continuance the testimony of the absent witness Dameron was to the effect that the prosecuting witness Docia had asked him to procure poison that she might administer it to her father so that she might be free to have a good time with boys. In the motion for new trial it is shown that the witness would not have given the testimony as to the poison as to Docia, but would have given it as to her sister, who was a witness in the case. The evidence sought, as was the other testimony of Dameron, if admissible, was impeaching in its nature, the absence of which, under the decisions of this court, does not demand a new trial. Michie, Cr. Digest, vol. 2, p. 87, cases listed; Vernon’s C. C. P. p. 317, note 25, cases listed.

One of appellant’s complaints is based upon the refusal of the court to exclude evidence of acts of intercourse other than that on the date named in the indictment. The question of law thus abstractly presented has long been a subject upon which there has been a diversity of opinion expressed in the decisions of this court and the dissenting opinions of its judges. Illustrative are Clifton v. State, 46 Tex. Cr. R. 21, 81 S. W. 723, 66 L. R. A. 727, 108 Am. St. Rep. 1035, Gillespie v. State, 49 Tex. Cr. R. 531, 93 S. W. 556, Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466, and Pridemore v. State, 59 Tex. Cr. R. 564, 129 S. W. 1112, . 29 L. R. A. (N. S.) 858, excluding such evidence, and Burnett v. State, 32 Tex, Cr. R. 86, 22 S. W. 47, Williamson v. State, 72 Tex. Cr. R. 618, 163 S. W. 435, Van Smith v. State, 64 Tex. Cr. R. 454, 142 S. W. 1173, Cain v. State, 68 Tex. Cr. R. 507, 153 S. W. 147, and Vickers v. State, 75 Tex. Cr. R. 12, 169 S. W. 669, declaring it proper. Without an extended review of the subject, the writer is of the opinion that the receipt or rejection of such evidence is to be determined by the facts of the case in hand, and that it often becomes admissible as tending to solve a controverted issue. Appellant stoutly denied the intercourse with his daughter, and by cross-examination of her and other witnesses for the state endeavored to discredit her testimony and her motives for giving it. She was 14 years of age. She was unable to testify to an act oí intercourse specifically coinciding with tiie date charged in the indictment. She testified to a series of acts of intercourse with appellant covering a period of about a' year preceding the date related in the indictment and coming up approximately thereto. In some of this she was corroborated by her sister about a year older than she. The exact occasion upon which the offense was committed was the subject of controversy, ana the fact of intercourse at all was sharply in issue. We think the evidence admitted was relevant, under the circumstances to aid in solving these issues.

There are no exceptions to the court’s charge, though some special charges were requested. One of these involves the proposition that the sister of Docia Alexander became an accomplice by reason of her knowledge of the intercourse between her father and her sister and her failure to remonstrate or disclose it. The daughters of appellant were, respectively, 14 and 15 years of age. Their mother was dead. They were members of their father’s household and under his control. We do not think the fact that the sister had knowledge of the transaction, under the circumstances, made her an accomplice, or raised that issue. Noftsinger v. State, 7 Tex. App. 324; Branch’s Crim. Law, § 319, and cases listed. The other charges requested are covered by the main charge in so far as they related to the evidence. The bill presenting the charges is quite indefinite, simply stating the charges, numbers 1 to 5, inclusive, were presented in due time and refused by the court and the exceptions taken. None of the charges are set out in the bill, either in tenor or effect, nor are there reasons assigned showing their applicability to the case. C. C. P. art. 743; Vernon’s Cr. Statutes, vol. 2, p. 521, note 57, and cases cited. We have read them in connection with the other parts of the record and reached the conclusion that, if more definitely presented, our views as to the disposition of the case would not be affected thereby.

Appellant suggests in his brief that there was evidence of acts of intercourse between appellant and the sister of Docia Alexander ; thát, while this testimony was withdrawn, it was of such damaging character that its withdrawal did not cure the error in its introduction. If it was shown that such evidence was introduced over appellant’s objection, we would regard it as very serious. In ' the absence of bill of exceptions, however, showing that it was introduced and that appellant objected to it, the subject is not brought before this court for review. C. C. P. art. 744; Vernon’s C. C. P. p. 554, and cases cited. There is copied into the record a bill of exceptions prepared b'y appellant; but the judge refused to approve it, and the appellant failed to verify the facts by bystanders. The law precludes the consideration of the matter.

The district attorney, in his argument closing the case, declared that:

“Defendant after the death of his wife became a wild demon. * * * This is a case that deserves bitterness.”

The following quotation from the bill is taken:

“Then stating with reference to his talk and 'conversations with witness Docia: ‘The more I talk with her, the more I am impressed with her truth. Defendant never did try to find the author of Docia’s shame. ** Look at that satanic grin and laugh on his face.’ ”

Without approving the terms selected by the district attorney in the argument mentioned, and considering alone the question of law involved in the bill, we think that, viewed in the light of the previous opinions of this court, particularly that of Morris v. State, 39 Tex. Cr. R. 371, 46 S. W. 253, Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052, Kemper v. State, 63 Tex. Cr. R. 32, 138 S. W. 1025, and other cases cited by Mr. Branch in his An. P. C. pp. 205, 206, reversible error is not disclosed. The court in qualifying the bill states that the reference to the grin and laugh was provoked by the defendant laughing during the argument, which seems to bring that part within the rule of invited argument. See Branch’s An. P. C. p. 205, § 363, and cases cited. We do not think that the argument with reference to his impressions of the witness Docia comes within the rule which inhibits the prosecuting attorney from giving testimony in his argument. We are of opinion that the bill does not show conduct of so grave a character as to obviously show injury and prejudice against the appellant, such as could not be cured by withdrawal in a special charge. The remarks were such that if he deemed them improper he could, in a special charge, have sought their withdrawal. Branch’s An. P. 0. p. 204, § 362, and cases cited.

Counsel, in a brief displaying commendable and exhaustive research, have presented the matters discussed and others in the record. After a careful examination of them, we are constrained to believe that the record does not disclose that appellant’s trial was unfair, or that there was departure from the procedure provided by law to protect his rights.

It is therefore ordered that the judgment of the lower court be affirmed.

On Motion for Rehearing.

In view of appellant’s earnest contention that the motion for new trial, based upon the action of the trial court in overruling the application for a continuance, should have been granted, we have carefully reviewed the matter.

The motion for continuance contained the allegation that Dameron, a witness named therein, would testify that Docia Alexander, the daughter of appellant with whom the incest is charged to have taken place, had asked the witness to procure poison that she-might administer it to her father. On the motion for new trial, appellant set up the fact that in attributing this statement to Doeia Alexander he was in error, but that the witness would give such testimony with reference to May, the sister of Docia Alexander. The record shows that May Alexander was an important witness corroborating Docia, and that appellant, by his conduct at the trial, endeavors to show through circumstances conspiracy between the two girls against him pursuant to which they gave damaging testimony. Appellant was tried March 22d. His motion for new trial was overruled April 4th, at which time the witness Dameron was present. He was not offered as a witness to verify the allegations in the motion for new trial, nor did any affidavit from him accompany it.

There are instances in which a motion for new trial should be granted because of absent testimony, though the application for a continuance to obtain it was properly overruled for want of diligence. Branch’s An. P. 'O. p. 188, § 319, and cases cited; Casinova v. State, 12 Tex. App. 554; Baxter v. State, 68 Tex. Cr. R. 136, 150 S. W. 912. These instances are those only in which from the evidence adduced on the trial the appellate court is impressed with the conviction, not merely that the appellant might have been prejudiced, but that it is reasonably probable that a more favorable verdict would have resulted. Covey v. State, 23 Tex. App. 391, 5 S. W. 283; Fuller v. State, 69 Tex. Cr. R. 534, 154 S. W. 1021; Branch’s An. P. C. p. 188, § 319, and cases cited; also, page 128, § 201. The failure to attach to the motion for new trial the supporting affidavit or evidence of the absent witness does not absolve the court from the duty of considering the motion, otherwise regular; but it does bear upon the question presented on appeal as to whether in refusing to grant the motion the trial court committed an error requiring reversal. Sharp v. State, 71 Tex. Cr. R. 640, 160 S. W. 369; Polk v. State, 60 Tex. Cr. R. 462, 132 S. W. 134; Davis v. State, 64 Tex. Cr. R. 8, 141 S. W. 264; McMillan v. State, 66 Tex. Cr. R. 288, 146 S. W. 1190; Browning v. State, 26 Tex. App. 432, 9 S. W. 770; Vernon’s C. C. P. p. 321, and cases cited; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92.

When the application for a continuance was presented, it was urged on the proposition that the absent witness Dameron would, if present, testify to a conversation with the injured party, Docia Alexander. As presented on the motion for new trial, it appeared that the absent witness would not testify to the alleged statement made by Doeia Alexander, but that he would testify to a statement made by her sister, May Alexander. As arising on the motion for new trial, the testimony of the absent witness could not bear upon the abuse of discretion of the trial court in overruling the motion for a continuance, for the reason that the proposed testimony was not in the application for continuance at all. On the motion for new trial the testimony of the absent witness could be considered only as coming within the principle of newly discovered evidence. In other words, the motion for new trial was sought on the ground that Dameron, who was not present at the trial, would testify to a statement alleged to have been made by May Alexander, and that the fact that he would give such testimony had been learned since the trial. Applying the rules applicable to a motion for new trial on account of newly discovered evidence, it will be found that the decisions of this court are uniform to the effect that, if the motion is not supported by the affidavit or sworn statement of the absent witness, or the absence thereof satisfactorily accounted for, the action of the trial court in overruling the motion cannot be reviewed. Stallworth v. State, 66 Tex. Cr. R. 428, 147 S. W. 238; Burrell v. State, 62 Tex. Cr. R. 635, 138 S. W. 707; Polk v. State, 60 Tex. Cr. R. 462, 132 S. W. 134; Martin v. State, 57 Tex. Cr. R. 595,124 S. W. 681; Laird v. State, 69 Tex. Cr. R. 553, 155 S. W. 260; Williams v. State, 65 Tex. Cr. R. 193, 144 S. W. 622; Bracher v. State, 721 Tex. Cr. R. 198, 161 S. W. 124; West v. State, 2 Tex. App. 210; Blake v. State, 3 Tex. App. 581, and other cases cited in Vernon’s C. C. P. p. 806, note 13; also, under article 837, C. C. P. subdiv. 6, cases cited in Vernon’s Crim. Stats, vol. 2, pp. 778-785.

One of the elements essential to require this court to review the action of the trial court in refusing a new trial on account of newly discovered evidence is that it must appear that the evidence is probably true. Gass v. State, 56 S. W. 76; Smith v. State, 28 Tex. App. 309, 12 S. W. 1104; Kirksey v. State, 61 Tex. Cr. R. 641,135 S. W. 577, and numerous cases cited in Vernon’s C. C. P. p. 786, note 11. The trial court in this case might have reached a conclusion on the motion for new trial favorable to the appellant if the motion had been supported by the affidavit or evidence of Dameron, and the failure to so support the motion when he was present in court probably influenced the judgment of the trial court in determining whether the evidence was probably true. We would not, in view of these authorities, be justified in disturbing the finding of the trial court, even though the proffered testimony be not classified as impeaching evidence.

Another matter stressed in the motion for new trial is the contention that May Alexander was an accomplice and that her testimony should have been weighed by the jury under instructions by the court as accomplice testimony. This is based upon the proposition that May Alexander knew of the -crime and failed to disclose it. According to the rule applied in this court, she was not an accomplice. Noftsinger v. State, 7 Tex App. 324; Schakey v. State, 41 Tex. Cr. R. 255, 53 S. W. 878; Elizando v. State, 31 Tex. Cr. R. 243, 20 S. W. 560; Webb v. State, 60 S. W. 961; Floyd v. State, 29 Tex. Cr. R. 356; Smith v. State, 23 Tex. App. 364, 5 S. W. 219, 59 Am. Rep. 773; Rucker v. State, 7 Tex. App. 564.

In view of these authorities, we are constrained to overrule the motion for rehearing.
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author: DAVIDSON, P. J. PEENDEEGAST, J.

text:
    WILLIAMS v. STATE.
    (No. 4698.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917
    Dissenting Opinion Dec. 31, 1917.)
    1. Criminal Law <®=>511(4) — Corroboration of Accomblioe — Prosecution for Hog Theft.
    In a prosecution for hog theft, the evidence of defendant’s accomplice is not sufficient of itself to prove the taking of the hog, and the accomplice must he corroborated as to ownex-ship and the taking as well as defendant’s presence.
    2. Criminal Law <®=>511(1) — Corroboration of Accomplice — Determination of Sufficiency.
    In order to ascertain whether defendant’s accomplice is cori-oborated, his testimony should be eliminated, and then the facts and circumstances taken independent of it to asceitain whether there is sufficient evidence to cori-ob-orate.
    3. Larceny <⅞=>27 — Guilt as Principal — Hauling- Hog to Defendant’s House.
    Defendant was not guilty of hog theft as a principal, even if he knew it was another’s hog which he was asked to haul from the place of killing to his house.
    4. Criminal Law ®=»424(3) — Evidence—Acts and Declarations Subsequent to Larceny.
    Acts and declarations occurring subsequent to the commission of the offense in defendant’s absence, even where the offense involves a eon-spii-acy to commit larceny, cannot be used against defendant, but only against the conspirator who had possession of the property or made the statement.
    5. Criminal Law <§=3814(15) — Trial — Instructions — Corroboration of Accomplice.
    The state relying for conviction on the testimony of defendant’s accomplice, a charge should have been given that in order to convict defendant’s accomplice must be corroborated as to the corpus delicti.
    Prendergast and Morrow, JJ., dissenting.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Sam Williams was convicted of hog theft, and he appeals.
    Judgment reversed, and cause remanded.
    T. D. Rowell and Armistead & Benefield, all of Jefferson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of hog theft; his punishment being assessed at two years’ confinement in the penitentiary.

The state relied upon the evidence of the accomplice George Smith. Without going into details, for the evidence is voluminous, the state’s case was made by George Smith, who testified he and defendant and others went into the woods and killed a couple of hogs. His testimony, if true, aside from the fact he was an accomplice, might be sufficient to form the basis of the verdict. He says it was a sow with a certain mark on it. The alleged owner, Rand, gave such mark. He places appellant present at the time, and states that after the hog was killed appellant went off, brought his wagon, and hauled the hog to his (appellant’s) house, where it was cleaned. This was denied by appellant, he stating he was not present, and had nothing to do with killing the hog. That some time during the night Smith came to his house and employed him to haul the hog in his wagon, for which he paid him 75 cents, his family corroborating him with reference to this matter. The state sought circumstances and facts to corroborate Smith, introducing quite a number of matters, but in these matters he was not corroborated as to appellant’s connection with the taking of the hog, nor was he corroborated as to the identity of the hog. Rand testified that he lost a sow, but he did not know what become of it, except that it had disappeared from its accustomed range. He never saw the hog; knew nothing about it, except the fact he owned a big spotted sow which disappeared. Smith is the only witness who testified to the killing of the hog and the presence of defendant. He is the only witness who undertakes to identify the 'animal as the property of Rand. In this he is not corroborated by any of the testimony, unless it be as above stated. We are of opinion that appellant’s contention is correct. The corpus delicti consists in taking Rand’s hog.

The evidence of the accomplice is not sufficient in and of itself to prove this fact. He must be corroborated as to ownership, the taking as well as the presence of the defendant. This matter has been the subject of many well-considered opinions by this court.In Crowell v. State, 24 Tex. App. 404, 6 S. W. 318, this matter came pointedly before the court in which the proposition was laid down that the corpus delicti of theft cannot be established by the uncoi-roborated testimony of an accomplice, but upon that issue the accomplice must be corroborated by other evidence tending to show the commission of the offense, and the defendant’s connection with the commission of the same. In a case where the ownership of the animal alleged to be stolen is proved only by the uncorroborated testimony of the accomplice, it is not sufficient on the issue of ownership, and therefore insufficient to support the conviction. This case was followed by Hanson v. State, 27 Tex. App. 140,11 S. W. 37. The Hanson Case lays down the proposition that upon the issue of ownership the accomplice must be corroborated. It was said in that ease that the accused stole the cow of any person is shown only by the testimony of Stockbridge, the accomplice. He states that the defendant carried the beef and part of the hide to his camp; that the cow was red, etc.; that she was killed 'about April 1st; that defendant hung up the meat to dry, etc. In that ease the deputy sheriff went to the camp of defendant and saw fresh beef and some strips of hide and some beef hung up to dry. He also saw fresh raw hide cut up in strips of suitable size for hopples. The testimony of this deputy sheriff constitutes the supposed corroboration.

As was laid down in that case, and in fact all the cases, as the fundamental rule, in order to ascertain the fact that the accomplice is corroborated, his testimony should be eliminated, then take the facts and circumstances independent of his testimony to ascertain whether there is sufficient evidence to corroborate. A later case is Truelove v. State, 44 Tex. Cr. R. 386, 71 S. W. 601, where the same doctrine is- announced and again enforced as laid down in Crowell v. State, and Hanson y. State, supra. Testing the evidence by the rules laid down, we find no testimony showing that appellant was present or aided in the killing of the animal except that of the witness Smith, and none to show that the hog belonged to the alleged owner Eand. It is not sufficient to merely show that Eand’s hog had disappeared from its range. That might be accounted for in various ways, but it does not corroborate Smith as to the fact that appellant was present at the time and aided in killing and took possession of the property of Eand. Appellant’s statement, which was introduced by the state, excluded the idea of his presence and knowledge that it was the property of Eand. The state put this testimony in evidence and should have disproved it, and a charge to this effect was asked, but refused by the court. Appellant’s testimony, not only as put in by the state, but by himself and his family, was to the effect that he was at home that night when Smith came and told he had killed a hog and wanted to employ him to haul it for him, for which he would pay 75 cents. Appellant hitched his team and hauled the hog for him. There is no evidence from any of these witnesses to the effect that the hog belonged to Eand. In fact, the testimony seems to exclude knowledge on the part of appellant that it was the property of Eand.

Under this view of the case appellant could not be guilty as a principal even if he knew it was Eand’s hog. The accomplice Smith testified that they carried the hog to appellant’s house, and there is evidence which tends to show appellant’s wagon may have gone from the place where it is claimed the hog was killed to appellant’s house. Smith also testified, in substance, that the hog was cleaned at appellant’s house,' and that there was another party or two with them, and that they divided the meat between them. The officers searched appellant’s premises and house; they found no evidence of where a hog had been, cleaned, and no fresh hog meat in appellant’s possession. Smith, the accomplice, proved by his wife that he (Smith) brought some meat home that night after she had gone to bed, and that they cooked some of it for breakfast the next morning, and that Smith took the balance away and she did not see it any more. This did not corroborate Smith as to appellant’s connection with it, and outside of Smith’s statement there is nothing to show this meat came from the hog that he says they killed.

Objection was urged to this testimony, which we think ought to have been sustained. This was possession- of fresh hog flesh at night after the consummation of the offense, if one was committed, and in no way binding upon appellant. It was subsequent to the transaction. Acts and declarations occurring subsequent to the consummation of the' offense,' in the absence of defendant, and even where it involves a conspiracy cannot be used against a coconspirator, but only against the one who has possession of the property or makes the statement. Appellant asked a charge, in substance, that before the jury could convict upon the testimony of the accomplice his testimony must not only connect the defendant with the taking, but it must be true and the circumstances must tend to connect the defendant with the commission of the offense. Thus far the court gave a charge, but appellant requested a further proposition in this connection, that this corroboration must tend to connect the defendant with the taking of the hog. In other words, in order to convict defendant Smith must be corroborated as to the corpus delicti. We think this should have been given in charge to the jury. This is in accord with the decisions already cited.

Without going into a detailed discussion of the many bills of exception and various questions suggested, from what has been stated this judgment must be reversed and the cause remanded, and it is accordingly so ordered.

PEENDEEGAST, J.

(dissenting). In order that I may not be put in the attitude of assenting to the propositions stated in the opinion, in substance, that to determine if the evidence of an accomplice is corroborated, his testimony must be eliminated, and that he must be corroborated in each particular, I will state my views:

It is established that an accomplice’s testimony does not have to be corroborated in every particular. That corroboration required by the statute is all that is necessary, which is, “by other evidence tending to connect the defendant with the offense committed.” Article 801, O. O. P. See Judge Ramsey’s opinion in Nash v. State, 61 Tex. Cr. R. 269, 134 S. W. 709, which has been uniformly followed since its rendition. See, also, 2 Vernon’s Crim. Stats, p. 738.

The statement in some of the older cases to the effect that one of the tests of the sufficiency of the corroboration is to eliminate the accomplice’s evidence, and then see if the other evidence exclusive of his tends to connect the defendant with the commission of the offense, has long since been exploded. The true rule is as stated by Judge Ramsey in said Nash Case, and by Mr. Branch in his Ann. P. C. § 719:

“The corroborative testimony need not be sufficient to establish the guilt of the defendant, for if this was the rule the testimony of the accomplice would be of no value.”

He cites a large number of cases exactly in point. Hence the testimony of the accomplice must be considered in connection with all the other evidence to establish the corpus delicti, just like a confession may be used to aid the proof of the corpus delicti. 2 Branch’s Ann. P. O. p. 1049.

In my opinion, the testimony of the accomplice was fully and completely corroborated.

MORROW, J. I understand the facts to bring this case in the class of Nash v. State, 61 Tex. Cr. R. 269, 134 S. W. 709, where the law of corroboration is, I think, correctly stated.
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text:
    MACUMBER v. STATE.
    (No. 4741.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    Criminal Law <©=>211(1) — Complaint—Date of Offense — 'Uncertainty in Allegation.
    A complaint, charging the date of the offense as “on or about the third day of June, 197,” there being no other averments to aid it with reference to the date, left the date uncertain, and the court erred in overruling defendant’s motion in arrest of judgment, although the information did not carry forward the defect.
    Appeal from Foard County Court; G. L. Burk, Judge.
    C. Macumber was convicted of an aggravated assault, and appeals.
    Reversed, and cause dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for aggravated assault, prosecuted by complaint and information.

The complaint charges the date of the offense as follows: “On or about the third day of ’.June, 197,” etc. There are no other averments in the complaint which aid it with reference to the date of the alleged offense. In Brewer v. State, 5 Tex. App. 248, Blake v. State, 3 Tex. App. 149, Collins v. State, 5 Tex. App. 37, and McCoy v. State, 43 Tex. Cr. R. 607, 68 S. W. 686, pleading containing the same defect was held so defective as to require the court to sustain the motion in arrest of judgment. The averment leaves the alleged date of the offense uncertain. Complaint is made that the court erred in overruling appellant’s motion in arrest of judgment, and, following the rule announced in the authorities mentioned, this contention must be sustained; this though the information did not cafry forward the defect. It could not be thus cured under the decisions of this state. Drummond v. State, 4 Tex. App. 150; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 293, 4 S. W. 890; Whitley v. State, 56 S. W. 69.

The judgment of the lower court is reversed, and the cause dismissed.


author: CONNER, C. J.

text:
    McKINLEY v. BONE.
    (No. 8718.)
    (Court of Civil Appeals of Texas. Ft. Worth
    Oct. 27, 1917.)
    1. Judgment <©=5953 — Former Adjudication —Finding—Evidence.
    In trespass to try title to a strip of 15½ feet off the east side of lot 20, evidence held to sustain a finding that a default judgment in a former suit by the defendant against the plaintiff for a strip of that width upon the east side of lot 21 did not bar the plaintiff’s right to all of lot 20, including the claimed excess of 15½ feet on its western side.
    2. Appeal and Eeeob <©=5931(6) — Admission of Evidence — Trial by Coubt.
    Assignments of error in the admission of evidence, in view of the fact that the trial below was before the court without a jury, need not be discussed.
    3. Appeal and Eeeob <©=5l 051(1) — Admission of Evidence — I-Iaemless Eeeob.
    Judgment would not be reversed because of any error in the admission of evidence, where the evidence admitted without objection sufficiently supported the trial court’s conclusions of fact.
    Appeal from District Court, Wichita County; B. W. Nicholson, Judge.
    Trespass to try title by J. W. Bone against F. M. McKinley. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Ralph B. Mathis, of Wichita Falls, for appellant. R. E. Huff, of Dallas, and Chauncey & Davenport, of Wichita Falls, for appellee.
   CONNER, C. J.

This suit was instituted by the appellee, J. W. Bone, in the form of trespass to try title for a strip of land 15 ½ feet in width off of the east side of lot 20 in block 262 in the city of Wichita Falls, Tex. The court has filed his conclusions of fact, and thereupon judgment was rendered for the plaintiff, Bone, and the defendant, McKinley, has appealed.

Briefly stated, it appears that on April 26, 1913, the appellant, joined by other joint owners, conveyed to the appellee lots 20 and 21 in the block mentioned. The deeds were separately made, neither described the boundaries of the lots by metes and bounds; the description in the deed to lot 20 being merely “all of lot 20 in block 262 in the city of Wichita Falls according to the subdivision of said block as made by T. D. Thompson, to which reference is made for full description.” The description in the deed to lot 21 was the same, except as to the number of the lot conveyed. The plat or subdivision of the block referred to in the deed shows the numbers of the several lots, and in the upper and lower corners of the plat on the eastern end of the block is printed the numerals “52½.” The width and length of the lots is not otherwise described. The evidence indicates, however, that at the time of the conveyances mentioned to Bone it was understood by all parties the width of the lots was 52½ feet and the length 162½ feet to an alley that ran through the block. At the time of the conveyance to Bone it appears that Bone procured a surveyor to mark the boundaries of his lots. The surveyor began at the southeast corner of lot 21, and thence ran 105 feet for the southwest corner of the land purchased by Bone. The southeast corner of lot 21, it appears from the evidence, is made to begin a specified number of feet from Grace street, which extends north and south along the east end of block 262. After Bone’s purchase he erected his dwelling house upon lot 20, he having paid cash for that lot, and having given his promissory notes for the purchase money of lot 21. It further appears that thereafter, to wit, on June 11, 1914, McKinley instituted a suit in the district court of Wichita county to recover 15½ feet in width off of the east side of said lot 21. The judgment rendered in that case recites that Bone made no answer, and the decree accordingly was in favor of McKinley for “15½ feet in width off the east side of lot 21 in block 262 in the city of Wichita Falls in Wichita county, Tex., according to the subdivision of said block as made by T. D. Thompson.” The judgment further recites that it appeared to the court that a mistake had been made in the deed to Bone conveying lot 21 “in that said land so conveyed in said recorded deed was all of said lot 21, when it should have read all of lot 21, excepting a strip 15 ⅛ feet wide extending along and through the extreme eastern side of said lot.”

Thereafter, on, to wit, the 6th day of March, 1916, J. W. Bone reconveyed to McKinley lot 21, for a consideration of $1 and the cancellation of the $1,100 notes that had been given for the lot. The description given in the deed of reconveyance is “all of lot 21, block 262, in the city of Wichita Falls, Tex., according to the subdivision of said block as made by T. D. Thompson, to which reference is made for full description,” no other or further description being given. It further appears that in some of the earlier deeds in McKinley’s title to lot 20 its width is given as 68 feet, and its western boundary line so described as to coincide with the eastern boundary of lot 19 to the west owned by W. E. Norton. It seems to have been later discovered that the strip of 15½ feet in width between the eastern boundary line of lot 19 and the' western boundary line of lot 20 as it had been placed by the surveyor who staked off Bone’s purchase from McKinley was not claimed by Norton as any part of his property, and the appellee, Bone, thereupon asserted claim to the strip as part of his said lot 20. McKinley also claimed the land, insisting that it was an excess in lot 20, and he accordingly extended his fence westward from the west line of lot 21 15½ feet, thereby insisting, in effect, that he had only conveyed to Bone the 52½ feet in width on lot 20, which extended from the southeast corner of the Norton lot eastward to the line of his new fence. Thereupon this suit was instituted by Bohe, as first stated, to recover the 15½ feet off the east side of lot 20 as he claims it.

Appellant’s first and principal assignment of error attacks the court’s findings of fact and Conclusions of law in that “in a certain suit in the district court of Wichita county, Tex., between F. M. McKinley and J. W. Bone there was a competent judgment entered settling the matters at issue between the parties hereto, in which judgment the excess in the block in controversy and in these two lots was definitely located by the court to be upon the east side of lot 21.”

While, as is to be inferred from the facts as we have above stated them, it may have been the purpose in this suit filed by McKinley in 1914 to determine and recover an excess of 15½ feet in the two lots, considered as a whole, that had been conveyed to Bone, there is nothing in the record that enables us to say that such were the issues joined in that suit. Appellant in this suit did not plead that judgment as res adjudicata, if indeed it was necessary to do so, nor upon the trial below was the petition upon which the judgment by default was predicated offered-in evidence. The evidence relating to the matter consists wholly of the judgment itself, which was offered in evidence in this case by Bone. The judgment on its face purports to deal with an excess in lot 21 only, indicating that an excess in this lot, and not an excess in lot 20, was the matter at issue, nor in the reconveyance of lot 21 by Bone to McKinley was it indicated that the boundaries of lot 21 were to be ascertained otherwise than by its description as given. The surveyor testifies that the southeast corner of lot 21 was to be ascertained by a recognized beginning point on Grace street to the east, and nothing in the evidence enables us to say that the trial court was in error in concluding, as in effect he did, that the judgment by default did not bar the rights of the appellee, Bone, to all of lot 20, including the claimed excess of 15½ feet on its western side.

Appellant’s only remaining assignments go to the introduction of certain testimony, which in view of the fact that the trial was before the court without a jury need not be discussed. The evidence objected to seems to have been admissible, but, if not, the judgment would not be reversed because of its admission in view of the fact that the evidence admitted without objection sufficiently supports the trial court’s conclusions of fact.

We conclude that all assignments of error should be overruled, and the judgment affirmed.
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