text:
    GASS v. SWEENEY.
    (No. 859.)
    (Court of Civil Appeals of Texas. El Paso.
    May 23, 1918.)
    1. Trial @=>350(8) — Special Interrogatories — Necessity of Request — Admitted Pacts.
    Where both parties to an action admit that ’certain goods were sold at an agreed price, court's refusal to submit special issue as to whether such goods were sold at an agreed price is not error.
    2. Trial @=>351(5) — Special Interrogato-bies — Questions Already Submitted.
    Refusal of court to submit a special issue involving a question covered by a special issue submitted was not error.
    3. Trial @=>350(4) — Special Interrogatories — Form of.
    Refusal to submit special issue, “was there a difference in defendant’s favor between the scale and compress weights,” was not error; such issue submitting question of law and improperly presenting question of whether compress weights were to govern instead of scale weights.
    4. Appeal and Error @==>930(3) — Presumption — Judgment—Findings.
    Under Rev. St. 1911, art. 1985, providing that failure to submit issue is not reversible error unless requested, where court does not submit special issue as to a question on which the evidence is conflicting, it will be presumed to have made a finding on such question in support of the judgment.
    Error to Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Action by El A. Sweeney against Charles E. Gass. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Grisham & Grisham, of Sweetwater, for plaintiff in error. Beall & Douthit and Jas. L. Spiller, all of Sweetwater, for defendant in error.
   HIGGINS, J.

Sweeney brought this suit against Gass alleging that on September 29, 1916, he purchased from Gass 50 bales of cotton, weighing 25,411 pounds, for 14.90 cents per pound on middling basis; that Gass delivered the cotton to H. J. .Sargent, who paid for same in Sweeney’s behalf; that Gass represented to Sargent that the contract price for the cotton was 14i5/i6 cents per pound and Sargent paid for same at that price, which was an overcharge of $9.52, and for which amount recovery was sought. It was further alleged that on October 4, 1916, he purchased from Gass 50 bales of cotton at an agreed price of 15.65 cents per pound on middling basis, less 17⅛ cents per 100 pounds, and less 35 cents per bale f. o. b. charges; that in payment for the cotton he paid a draft for $4,273.55 drawn on Mm by Gass; that the amount of the draft exceeded the contract price by $287.83, for which amount recovery was also sought. The case was tried before a jury and submitted upon one special issue as follows: “What was the agreed price per pound for the October, 1916, lot or shipment of cotton?” The answer was, “15.65 cents.” Upon this answer judgment was rendered for the $9.52 sued for on account of the September delivery and for the $287.83 sued for on account of the October delivery.

Gass answered as follows:

“This defendant admits that the facts as alleged in paragraph 1 of plaintiff’s petition is in part true, and admits that the error as recited therein was in fact made and for which this defendant would be liable to the plaintiff in the sum of $9.52 but for the facts as hereinafter set forth, viz.: That the weights upon which defendant sold the cotton to the plaintiff wore yard weights and not compress wreights, and that the difference in the yard weights and compress weights would leave a balance due the defendant as will hereinafter more fully appear. “Defendant says that as a matter of fact he sold plaintiff the cotton as mentioned in the second paragraph of plaintiff’s petition; that ho sold it to the plaintiff for the sum for which the draft was drawn and paid by plaintiff; that the price was agreed upon by and between plaintiff and defendant over the telephone and was reduced to a memorandum by the defendant at the time, and that the draft was drawn for the exact amount as agreed upon, save and except that defendant knew at the time that the weights used in making the estimate were the yard weights and knew that plaintiff or the defendant might be called upon to correct the same to correspond to the compress weights which govern and control in such sales, and defendant understood that same should govern in this sale and each of the sales involved in this transaction.
“Plaintiff paid off the drafts in each bf .the instances hero involved, but has not at any time furnished the defendant with the weights from the compress, and defendant here alleges that by said compress weights there was and is a gain in the weights of an average of five pounds per bale; that by reason of the prices as agreed upon by and between the plaintiff and defendant and because .if the difference in said weights as aforesaid the plaintiff is further due the defendant the sum of $85.
“Defendant says that he did not at any time agree to sell to the plaintiff the cotton mentioned in subdivision 2 of said petition for the prices named therein.
“Defendant says that for the facts herein averred plaintiff should not recover any sum whatsoever from the defendant, but, on the contrary, the plaintiff is due the defendant the sum of $-less the said sum of $9.52, which defendant offers to credit on the sum due defendant by the plaintiff.”

In Ms testimony he admitted that he was due Sweeney $9.52 on the September delivery, subject to a correction in weights. He further testified:

“It is customary in the cotton business to sell the cotton to be delivered according to compress weights, and any sale made according to yard weights is subject to correction to conform with the compress weights. I have been selling on the market here for three seasons, and know the average difference between compress weights and yard -weights. I understood that compress weights was to govern in this sale, as was usual and customary in such matters. There is a difference of about five pounds per bale between .the yard weights and the compress weights, in favor of the compress weights. * * *
“I made the sale to the plaintiff in question of the 'second batch of cotton mentioned for 16.65 cents per 100 poupds. I made the sale over the telephone to the plaintiff. I had talked with him. I knew his voice. I recognized what he said, and he quoted me a price of 16.65 cents per pound for middling cotton. I did not sell it to him, nor agree to sell it to him for 15.65. I drew the draft for the exact amount for which I ?old it to the plaintiff. The price of 15.65 was very nearly what I was giving for it on the market in Sweetwater, and cotton was increasing in value, and I would not have sold except for the profit at the time. In this particular sale, it was made specifically too on the yard weights and the sale was unconditionally for this price. * * *
“I am sure that the plaintiff quoted me a price of 16.65 on this cotton. My book was before me when I had the conversation over the telephone, and I made an entry in my cotton book at the time showing the price for which I had sold it, and the entry was made correctly at the time. I know same to be correct, and it shows the sale at 16.65 and not 15.65.”

The invoice of the October delivery shows that the same weighed 25,869 pounds, which at 16.52 cents per pound would amount to $4,273.55, which is the amount of the draft paid by Sweeney for this cotton. Sweeney testified that the contract price for the September delivery was 14.90 cents per pound middling basis; that the contract price for the October delivery was as alleged by Mm. He denied that it was customary to buy on compress weights and testified that he did not buy the Gass cotton on compress weights. He stated that he bought only on yard weights.

It is assigned as error that the court erred in refusing to submit the following special issues requested by Gass, viz.:

(1) Was the October, lot of 50 bales shipped for an agreed price?
■ (2) If the foregoing question is -answered in the affirmative, then state for what price it was shipped.
(3) Was there a difference in defendant’s favor between the scale and compress weights?
(4) If you answered the foregoing question in the affirmative, then state what was the difference in weight and the value of same.

Both parties admitted that the October delivery was purchased at an agreed price. The only issue in this respect was as to the amount of the agreed price. There was therefore no necessity to submit the first requested issue, and the court was authorized in assuming that there was an agreed price. The amount of such agreed price was submitted by the court wMch is the point covered by the second requested issue. Hence there was no error in refusing to submit such second issue.

It will be observed from the statement made, there were only three issues in this case, viz.:

(1) The price agreed upon .for October delivery. This issue was submitted by the court and found by the jury to be 15.65 cents per pound.
(2) Whether the cotton, was sold under an agreement that the compress weights were to govern instead of yard weights.
(3) If compress weights were to govern, then would such weights exceed the yard weights and if so, how much.

If there had been a proper request for the submission of these last two issues, the refusal thereof would have constituted reversible error. The third and fourth requested issues do not properly present the same. They do not cover the question of whether there was an agreement that compress weights were to govern, and that the weights were subject to correction in that respect. To simply ask the jury if there was a difference in defendant’s favor between scale and compress weights was not proper. It called for a finding upon a question of law rather than an issue of fact, which it is the sole province of the jury to pass upon.

The issues upon this phase of the case were as stated above, and, since requested issues 3 and 4 did not properly preseift the same, their refusal was not error. And since the evidence is conflicting as to whether there was .an agreement that the sales were subject to correction in weights and that the compress weights were to govern, it must be presumed in support of the judgment that the trial court found that there was no such agreement. Article 1985, R. S.

In the state of this record, we think m> reversible error is shown by the refusal of the requested issues.

The second, third, and fourth assignments complain of rulings on evidence. We think they present no error, hut, if so,, it is not reversible.

There is no merit in the fifth, which asserts that the judgment is contrary to the law, and unsupported by the evidence.

Affirmed.

HARPER, J. concurs. WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    SCHAFF v. WILSON.
    (No. 1900.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 28, 1918.
    Rehearing Denied May 9, 1918.)
    1. Railroads <§=>484(3) — Fires — Question for Jury.
    Whether a house situated near defendant’s railroad track was set on fire by sparks from a passing engine held,, under the evidence, to be a question for the jury.
    2. Trial <§=>260(1) — Instructions—Refusal Covered by Others.
    It was not error for the court to refuse to give a requested charge on a matter covered by another instruction.
    3. Appeal and Error <§=>1170(7) — Reversal —Trivial Error — Exclusion of Evidence —Res Gestae.
    Refusal to admit in evidence as res gestse a statement of plaintiff’s wife regarding the origin of the fire destroying their dwelling, in view of her statements as a witness, held not ground for reversal, under provisions of rule 62a (149 S. W. x), prohibiting reversal, unless error was calculated to cause rendition of improper judgment, etc.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Suit by J. Ben Wilson against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The appellee’s residence and the effects therein were destroyed by fire occurring near 1 o’clock a. m. The house was situated on a hill about 25 feet higher than and 440 feet north of appellant’s railway track running in a general southerly direction. The appellee alleges that the loss was occasioned by sparks of fire escaping from the passing locomotive through negligence of' appellant. The appellant denied any act of negligence, and denied that the fire that burned the house originated from sparks from the locomotive. The jury returned a verdict in favor of the plaintiff. It is concluded to sustain the findings of the jury that sparks of fire emitted from a passing locomotive through negligence of appellant proximately caused the damages sued for and in the amount awarded the plaintiff.
    Schluter & Singleton, of Jefferson, and Chas. C. Huff, of Dallas, for appellant. Ross & Zumwalt, of Dallas, T. D. Rowell, of Jefferson, and W. L. Grogan, of Shreveport, La., for appellee.
   LEVY, J.

(after stating the facts as above).

Appellant insists that the court should have directed, as requested, a verdict in Ms favor because there is no proof showing, or tending to show, that the fire which destroyed the house originated from sparks from the locomotive. In the circumstances the origin of the fire is, it is concluded, a jury question, and the court did not err in passing the issue to the jury for decision. The wife of appellee, being at the time awake, saw the north-bound passenger train as it was passing the house at 12:20 a. m. She testified:

“I could see the engine of the train as it passed. The engine was making a considerable noise in pulling the grade there. There was an unusual amount of sparks being thrown that night. I merely watched the train pass, and noticed it was throwing an unusual amount of fire. The sparks were blowing towards the house. * * * I have watched sparks from the train at night very often. There were more than common that night. Some of them went very high and were light for some distance in the heavens.”

She further testified that shortly after-.wards, “somewhere near 1 o’clock,” she discovered that the house was afire, and it was well under way on the roof and in the ceiling. The wind was high, and blowing directly towards the house from the railway, and the weather was very dry, and had been for two months. The house was a frame one, with a shingled roof, built in 1909. Mrs. Wilson further testified as follows:

“I didn’t have any fire; the stove had not been put up in the dining room; there had been no heaters put-up in the house. We had two chimneys and the cookstove that were fixed for fires. I had not cooked supper that evening, but had made a chip fire in one corner of the stove and warmed up some gravy. I suppose I had the fire in the cook stove a little before 6; it was before dark. I examined the cook stove before I went to church.”

The engineer, testifying in behalf of the plaintiff, said:

“The greatest distance I know of an engine I was running putting out fire was something like 150 or 175 yards as near as 1 could come, guessing at it going alone, you know. * * * An unusual noise and an unusual amount of sparks, when there is not much of a train, in my judgment indicates that he (the engineer) has dropped the lever over too far. * * * A passenger train pulling an ordinary grade, and the train is not excessively heavy, when in pulling that grade the engine makes an unusual amount of noise and it throws out an inordinate amount of sparks, I would take it that it was not properly equipped.”

The railway track as it approaches the house towards the north is on a curve, and is also on a heavy grade. The train on this occasion consisted of a locomotive and four •passenger coaches. It is for the jury to say whether the loss complained of was caused by fire communicated from the engine of the defendant, if there is any evidence, as here, from which the inference of such origin may be drawn. Lumber Co. v. Railway Co., 106 Tex. 12, 155 S. W. 175; Railway Co. v. Black-eney-Stevens Co., 106 S. W. 1141. It is believed, th&efore, that the second assigned error should be overruled.

By the third assignment error is predicated upon the refusal of the court to give a special charge. The court covered the same issue in the main charge when it was required of the jury, in the eighth paragraph, to find for the defendant if the house was not burned as the proximate result of sparks that escaped from defendant’s locomotive. The court further instructed the jury that on the whole case the burden of proof rested upon the plaintiff.

Error is predicated upon the refusal of the court to admit as evidence, as res gestee, a statement by Mrs. Wilson at the time of the burning of the house that the fire originated in the pantry. The statement purported to be the opinion of Mrs. Wilson. In the light of all the evidence of Mrs. Wilson, describing the burning building when she first discovered that it was afire, it is believed injury did not result from the ruling warranting the reversal of the case. Rule 62a (149 S. W. x). Mrs. Wilson testified as follows:

“When I discovered the fire I went and drew a bucket of water at the well at the corner of the house, and I ran back in the kitchen and threw it at the fire. I threw it in the pantry by the side of the- kitchen. It was burning about the middle of the pantry, the best I noticed, where there was a box and some things in it. It seemed it had dropped down from the roof. When I ran to the door to look in it was afire clear up as far as I could see. I ran up as close as I could and looked in, and the whole thing was afire. I did not take any special notice of the roof, and could not swear that the roof was afire above; I know it was from the amour t of the fire. At the time I saw the fire in the pantry I did not know the condition of the roof of the entire building. ⅜ * * I ¿¡¡¿j not gee roof ulltil I went out and it was in flame all over. When I went out in the front yard I could see that portion of the house facing the railroad; it was aflame all over at that time. The condition of the house on the inside with respect to the ceiling was all intact when y?e left the house, but when I looked up I could see the fire through the cracks, but no planks had fallen in.”

The judgment is affirmed.
      ,§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    OZBOLT et al. v. LUMBERMEN’S INDEMNITY EXCHANGE.
    (No. 5863.)
    (Court of Civil Appeals of Texas. Austin.
    April 3, 1918.)
    1. Was ’ <®=>Í0(2) — Ainas Enemy — “Residence” — “Citizenship’ ’ — “Citizen.”
    A motion to dismiss an appeal because appellants are alien enemies, residents of Hungary, will be overruled, whore it does not appear that they are aliens or citizens of Austria-Hungary, an enemy country, although residents thereof, “residence” not being synonymous with “citizenship,” which is a status or condition and is the result of both act and intent, a “citizen” being one who, as a member of a nation or body politic of the sovereign state, owes allegiance to and may claim reciprocal protection from its government. (Quoting Words and Phrases, Residence. See, also, Words and Phrases, First and Second Series, Citizen, Citizenship.)
    2. War <S=>10(2) — Status oe Aíien Enemies —Right to -Appeal.
    It does not follow necessarily that an appeal prosecuted by a citizzen of Austria-Hungary will be dismissed because of the fact that since the appeal -was perfected our government Eas declared war on such country.
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Suit by. Yeronika Ozbolt and others against the Lumbermen’s Idemnity Exchange, From an order changing the venue, plaintiffs appeal. On motion to dismiss appeal.
    Motion overruled.
    E. C. Gaines, of Austin, for the motion.
   KEY, C. J.

This suit was filed April 1, 1916. On November 15, 1916, the court 'sustained the defendant’s plea of privilege, and changed the venue to the district court of Harris county; and the plaintiffs have appealed from that order. The transcript was filed in this court on the 27th day of January, 1917. Appellee has filed a motion to dismiss the appeal for the following reasons, as stated in the motion:

“It appears from plaintiff’s petition that all the plaintiffs reside in ‘Gerova, Croatia, Hungary, in the empire of Austria-Hungary.’ On the 7th day of December, A. D. 1917, the Senate and House of Representatives of the United States of America in Congress assembled, declared that a state of war does exist between the United States of America and the imperial and royal Austro-Hungarian government, and the same was on that day approved by the President of the United States of America at 5:03 o’clock p. m., of all which, as a fact, this court will take judicial notice. It appearing that all the plaintiffs, appellants herein, are alien enemies, appellee begs to suggest to the court that neither the people nor the courts of the United States of America, nor any state thereof, will render any aid or assistance to them, and appellee, therefore, now moves that this appeal be dismissed.”

The motion will be overruled, because the record does not show that the appellants are alien enemies. As stated in the motion, they allege in their petition that they reside in Gerova, Croatia, Hungary, in the empire of Austria-Hungary. However, they do not allege, and it is not made to appear otherwise, that they are citizens Of Austria-Hungary, or of any other nation with which this government is at war. The mere fact that the plaintiffs reside within the borders of a hostile government does not show that they are alien enemies. They do not allege in their petition, nor does it otherwise appear, that they are citizens of, or owe any allegiance to, Austria-Hungary; nor is it made to affirmatively appear that they were born out of the United States, and are not citizens of this government. A citizen of one government can reside within the borders of another government without owing any allegiance to the latter.

Not only does the record fail to show that the plaintiffs are aliens, but it also fails to show that they are citizens of and owe allegiance to the government of Austria-Hungary; and therefore, if it be conceded that they are aliens, it does not appear that they are alien enemies. An alien enemy is one who owes allegiance to an adverse, belligerent nation. Dorsey v. Brigham, 177 Ill. 250, 52 N. E. 303, 42 L. R. A. 809, 69 Am. St. Rep. 228.

The term “residence” is not synonymous with citizenship; and an averment of residence is not an equivalent of an averment of citizenship for purposes of jurisdiction of the United States courts. Citizenship is a status or condition, and is the result of both act and intent. 7 Words and Phrases, page 6152. “A citizen is one who, as a member of a nation or of the body politic of the sovereign state, owes allegiance to and may claim reciprocal protection from its government. While the word ‘citizen’ is capable of more meanings than one, it is not a convertible term with ‘inhabitant’ or ‘resident.’ ” ' 7 Cyc. p. 133. See, also Ex parte Blumer, 27 Tex. 734.

Eor the reasons stated, we conclude that the motion should be overruled. However, to prevent misapprehension, we do not wish to be understood as holding that because this government is at war with Austria-Hungary, it necessarily follows that an appeal prosecuted by a citizen of the latter government should be dismissed because of the fact that since the appeal was perfected our own government has declared that a state of war exists with the government of Austria-Hungary. Whether that penalty should be visited upon an alien enemy in such circumstances, or whether the appeal should be held in abeyance until the termination of hostilities, is a question which need not be decided in this case, and upon which we express no opinion.

Motion overruled.
      <S=a>Eor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. PEMBERTON.
    (No. 5897.)
    (Court of Civil Appeals of Texas. Austin.
    March 20, 1918.
    Rehearing Denied May 15, 1918.)
    1. Trial @=>350(5) — Special Issues — Pleading-.
    In an action against a railroad for injury to land caused by overflow, allegations that railroad, having raised its roadway, failed to construct sufficient culverts or sluiceways to drain the' water, held sufficient to authorize submission of special issue as to whether maintenance of roadbed caused damage.
    2. Wateks and Water Courses @=>178(2)— Overflow — Damages.
    In an action for injury to land caused by overflow, the measure of damages is the difference between market value of land immediately before the overflow and its market value immediately thereafter.
    3. Trial <⅜=>351(5) — Requested Issues — Covered by Ttaoss Submitted.
    Court’s refusal to submit requested special issue is not error, where the question involved was covered by other issues submitted.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    . Action by Noah Pemberton against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Boyle, Ezell, Houston & Grover, of San Antonio, and Neff & Taylor, of Waco, for appellant. Alva Bryan, Edgar & Chas. Witt and G. W. Barcus, all of Waco, for appellee.
   JENKINS, J.

Appellee sued for damages to his crops for the years 1913, 1914, and 1915, and for permanent injury to his land occasioned by overflows alleged to have been caused by the negligence'of appellant. He alleged, as grounds of negligence, the raising of appellant’s roadway; the filling up of an opening in its roadbed; and the failure to construct sufficient culverts or sluice-ways as the nature of the land required to properly drain the same; and the construction of a dump parallel with its roadbed.

The evidence showed that the parallel dump was' constructed by the county for a public road on land over which appellant had no control, and that the raising of appellant’s roadbed would not have damaged appellee’s land or crops had sufficient openings been left in same. So the failure to construct and maintain such openings is the only issue of negligence involved herein.

Appellant’s first assignment of error is as follows:

“The court erred in entering judgment for $100, as found by the jury in answer to special issues Nos. 10 and 11, because the pleadings of the plaintiff do not authorize the recovery on account of the maintenance • of the defendant's roadbed at the place in question, as submitted by the court in said issue No. 10, and consequently a judgment has been entered against the defendant by the court, upon the issue of negligence not raised by plaintiff’s pleadings, and unsupported by any evidence in the record.”

Assignments of error Nos. 2, S, and 4 are substantially the same as No. 1, except that they relate to other items of damage found by the jury.

We do not agree with appellant’s contentions under these assignments. As indicated by the foregoing assignment, the case was submitted on special issues. The point stressed by appellant is that the finding of the jury that the damage was occasioned by reason of the “maintenance” of appellant’s roadbed is not a finding that such roadbed was improperly constructed. When the entire charge and findings of the jury are looked to, we do not think this contention can be sustained. Special issue No. 10 was as follows:

“Was plaintiff's crop of corn in April, 1914, or any part thereof, destroyed by water as the proximate result of the maintenance of defendant’s roadbed at the place in question?”

—to which the jury answered, “Xes,” and in response to special issue No. 11 fixed the amount of such damage at $150. In a previous part of the charge the court correctly defined “proximate cause.” In response to a previous issue, the jury found that appellant did not so construct its roadbed as to provide sufficient openings, culverts, or sluices, as the natural lay of the land required, for the necessary drainage thereof. Issue No. 5 reads as follows:

“Did plaintiff sustain any damage, as alleged by him, as the proximate result of the condition of defendant’s roadbed at the point in question, on or about the different times alleged in plaintiff’s petition V”

—to which the jury answered, “Xes.”

Appellee alleged that his land was overflowed for the reason, among others, that appellant had not left sufficient openings or sluiceways as required by the natural lay of the land to carry off the water in times of excessive rains. If one were disposed to be hypercritical, he might say that it was not the improper construction of the roadbed which caused the damage, but the maintenance thereof in such condition until it rained enough to cause an overflow. We do not think there was error in the manner of submitting this issue, especially in view of the fact that the court in paragraph No. 3 of its charge instructed the jury, in effect, that maintenance included construction. The paragraph referred to reads as follows:

“Xou are charged that the defendant railway company was required, at the time in question, in the maintenance of its roadbed at the point in question, to construct and maintain all necessary openings, culverts, or sluices as the natural lay of the land required for the necessary drainage thereof.”

The fifth assignment is, in substance, that the court erred in entering judgment for the amount found by the jury as permanent injury to the land, for the reason that the court instructed the jury that plaintiff’s measure of damage was the difference in the market value of the land immediately before the commission of the acts complained of, and the market value of same immediately after the overflows.

The court did not err in entering judgment as to this item of damage, if it was properly submitted to the jury, and- there was evidence to sustain the finding thereon. The appellant did not except to this issue as submitted; the assignment does not state that the court erred in submitting this issue in the manner that it did, nor does is allege that there was not sufficient evidence to sustain the finding of the jury.

Appellant also assigns error upon the refusal of the court to submit special issue No. 3, as requested by it. While it would not have been error for the court to have submitted this issue, we think that it was covered by the issues submitted, at least to the extent that the refusal to submit the requested issue does not constitute reversible error.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHADD, J. HARPER, O. J.

text:
    BRITAIN v. RICE.
    (No. 838.)
    (Court of Civil Appeals of Texas. El Paso.
    April 18, 1918.
    On Rehearing, May 16, 1918.)
    1. Witnesses @==>330(3)—Cross-Examination —Impeachment—Materiality. .
    In broker’s action for commission for sale of land, where pleadings raised an issue as to the terms and conditions of the sale, cross-examination of principal as to terms of sale was not objectionable as tending to impeach witness on collateral matter.
    2. Bbokers <§=>85(6)—Actions—Evidence-Admissibility.
    In action for commission by real estate broker, evidence that principal, while sale was pending, inquired of a witness whether he would be liable for commission if, having listed land for cash, he transferred it in a trade or for notes, held admissible.
    3. Bbokees <@=>84(1) — Actions — Burden op Peoof.
    In broker’s action for commission for sal® of land, the burden of proving the commission agreed upon is upon the broker.

      On Rehearing.
    4. Bbokeks @=>86(6) — Actions—Evidence-Sufficiency.
    In action for commission by real estate broker, evidence held to show that broker agreed to a reduction in the amount of commission in consideration of principal taking an automobile as part of the purchase price in the sale of land listed to be sold on other terms.
    5. Brokers <@=>71 — Compensation—Sale by Owner on Different Terms.
    Where principal takes an automobile as part consideration in the sale of land under an agreement with broker that commission was to be only $50 instead of $300, the commission agreed upon in the event of a sale of the property under terms listed, broker will be held to such agreement, and cannot recover commission originally agreed on.
    6. Brokers <@=>71 — Amount—“Cash.”
    Where broker consented to a reduction in the amount of commission to $50 “cash” upon principal’s agreement to sell land on different terms than those listed, the word “cash” did not indicate intention that the money was to be paid immediately and before trade was closed, but merely to show amount was to be paid in money, and not other things of value.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cash.]
    Appeal from Coryell County Court; H. E. Bell, Judge.
    Action by W. E. Rice against J. M. Britain. Judgment for plaintiff, and defendant appeals. Affirmed.
    On rehearing judgment reduced to $50.
    See, also, 183 S. W. 84.
    McClellan & McClellan, of Gatesville, for appellant. Blears & Wtatkins, of Gatesville, for appellee.
   WALTHADD, J.

In this case W. E. Rice sues J. M. Britain to recover the sum of $300, the amount alleged to be due as commission on the sale of land. The jury found in favor of Rice, the judgment was so entered, and Britain appeals.

The land was to be sold for $6,000, a part for cash and part on time, in which event Rice was to receive as commission the sum of $300. Rice found the purchaser, and the sale was eventually made. Britain pleaded general denial, and makes the further contention that after listing the land with Rice, and after the purchaser had been found, but before the sale had been closed, he communicated to Rice the offer made by the purchaser and told him that he could not afford to close the deal on the terms offered if he must pay to Rice the commission of $300, but that he would accept the offer if Rice would accept $50 in cash for his commission, that sum to be paid when the trade was closed.

Rice’s contention is that before the trade was closed, Britain offered him the sum of $50 if he (Rice) would get out of the trade; that he offered to accept $50 in cash and get out of the trade, which sum Britain refused to pay ;■ that he did not agree to accept said, sum as his commission when said deal was closed, but was conditioned solely upon his getting out of the trade before any kind of contract of sale was consummated; that he then informed Britain, and thereafter informed him before the sale was consummated, that in the event of a sale he (Britain) would owe him a commission of $300.

Appellant presents four assignments of error: Insufficiency of the evidence to support the verdict; error in requiring Britain to testify on cross-examination as to the terms and conditions of the sale of the land, claiming that such testimony was immaterial, irrelevant, and incompetent, and tended to impeach and discredit witness by proof of a collateral and immaterial issue; error in permitting a witness to testify that before the sale was perfected Britain asked the witness whether he would be liable for commission where he had listed the land for sale for cash and a purchaser had been procured who had offered the price in trade or notes, and if under such circumstances a commission would be due, whether he would have to pay such commission if he did not close the sale within the time allotted to procure a purchaser, claiming such evidence to be immaterial and prejudicial, as showing bad faith, an attempt to impeach appellant by proof on an immaterial fact and foreign to the case, and because appellant did not seek to avoid payment on the ground that a purchaser had not been found on terms, or within the time authorized; error in refusing a special charge to find for appellant for the sum of $50, and no more.

The court was not in error in any of the matters pointed out in the assignments. The pleadings tender issues showing a dispute between appellant and appellee as to the terms of the contract and the amount to be paid and the good faith of appellant in executing the two deeds to the purchaser, and the evidence tends to throw light on the matters in controversy. The burden was on the appellee to show that he was entitled to a commission of $300, rather than the sum of $50, for getting out of the trade. The evidence was sufficient to support appellee’s contentions. The assignments are overruled.

The case is affirmed.

On Rehearing.

HARPER, O. J.

Upon review of this appeal we have concluded that it is purely a fact case, and that upon a proper construction of the undisputed evidence appellant should recover instead of appellee, as held in the original opinion. The question to' be determined is: Is appellee entitled to recover $300 or $50 as commission for finding the purchaser of appellant’s land? It is agreed that the land was listed to be sold for $6,000, at 5 per cent, commission.

Appellee testified:

“In the first conversation * * * when the defendant listed the land with me he did not tell me he wanted all cash if he sold it, but that, if I could get $3,000 or $4,000 in cash, he could run over a note which his mother held against the land for the balance.
“The next conversation I had with defendant * * * was on the 20th day of August, 1014. * * * jje me that Stanfield * * * had offered to buy ⅜ * * for $6,000 if he (Britain) would take an automobile as a cash payment of $650 and notes for the balance. * * ⅜ fllrther said that he could not close a sale without taking in the automobile, and that he could not afford to take it and notes if he would have to pay me a commission of $300. At that time he offered to pay me a commission of $300, if I would take the automobile for my commission and pay him the difference of $350. I told him that I could not do that, and he then said he would close the trade if I would take $50 for my commission. I thought $50 better than nothing, so I told him if he would pay me $50 in cash I would get out of the trade. Pie agreed to this, and said he would see if he couldn’t close the trade with Stanfield. No; there wasn’t a word said at that time about his paying me the $50 when the trade was closed. I understood that it was to be cash.
“I had. another conversation with Britain about October 5, 1914, and demanded the. $50, and told him he knew it was to be paid in cash. He said he would pay it when the sale was closed. I then told him that, if he closed the trade, I would hold out for the whole $300. Afterwards, in November, 1914, he told me that he had closed the trade, and offered me $50 in cash as my • commission. I did not accept it, and refused the $50 tendered into court.”

The appellant’s testimony is almost identical with the above, with the additional statement that “the $50 in cash was to be paid when the trade was closed.” Whether or not the time of payment of the $50 was stated makes no difference; for clearly the conversation detailed conveys no other meaning than that it was to be paid when the sale was closed, with the automobile as a part of the consideration.

The rule is that an agent is entitled to his commission when he produces a purchaser who is' willing and able to purchase the property of the principal for the consideration and under the terms proposed. Appellee had not produced a buyer who was able and ready to purchase for cash and notes, but had offered an automobile as part consideration. This the principal could not and would not accept, evidently because it was not considered of the value fixed for it, so the’principal made another offer to the agent (appellee) to allow $50 commission and take the automobile. This second offer was accepted by appellee.

Appellee insists that because “he understood that the $50 was to be cash” the time of its payment was fixed. The term “cash” in the connection used in the sentence conveys- no such meaning, but only distinguishes between money and property, or other thing of value.

So, under the undisputed facts, appellee is only entitled to $50, and this was admitted by appellant and tendered into court. The motion for rehearing is granted, and the cause reversed and judgment here rendered that appellee recover of appellant the sum of $50 only. Costs below and upon appeal adjudged against appellee.

On rehearing Justice WALTHALL did not sit, being absent on committee of judges assisting the Supreme Court.
      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ffi=>Iior other cases see same topic and KEY-NXJMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J.

text:
    UNDERWOOD v. ROBISON, Land Office Com’r, et al.
    (No. 4233.)
    (Supreme Court of Texas.

    June 28, 1918.)
    Mines and Minerals <&wkey;25 — Mineral Permit — Forfeitures.
    Act's 33d Leg. c. 173, providing that failure of the owner of mineral rights in school lands to comply with certain requirements shall work a revocation of his permit and the termination of the rights of the owner, and such termination shall be indorsed by the Commissioner of the General Land Office upon a duplicate of the permit retained in the General Land Office, does not ipso facto work a forfeiture of mineral rights, and other applicants cannot file until the commissioner has indorsed a termination upon a duplicate of the permit retained in his office.
    Motion by John C. Underwood for leave to file petition for mandamus against J. T. Robison, Commissioner of the Land Office.
    Motion overruled.
    Rowe & Kay, of Houston, and N. A. Rector, of Austin, for relator.
   HAWKINS, J.

The motion is for leave to file a petition for the writ of mandamus. Leave is refused because, in our opinion, the petition is without merit, in that it presents a question of law which plainly is controlled by previous decisions of this court.

The question raised is this: Does the Act of 1913, c. 173, p. 409 et seq., relating to tue prospecting of school lands and the development of minerals thereon, provide for ipso facto forfeitures of mineral rights acquired under said statute, because of failure to comply with its requirements, or does the extin-guishment of such rights, for such causes, await the action of the Commissioner of the General Land Office in making, upon the duplicate copy of the permit retained in the General Land Office, an indorsement of such forfeiture?

We hold, to the latter view. Said act of 1913 does, indeed, declare that failure of the owner of the.permit to comply with certain requirements “shall work a revocation of said permit and the termination of the rights of the owner”; hut that declaration is followed, immediately, by the provision:

“Such determination shall be indorsed by the Commissioner of the General Land Office, upon a duplicate of the permit retained in the General Land Office.”

The policy of our laws, as expressed in various earlier statutes relating to public lands, and as worked out and declared in several decisions of this court construing them, has been against ipso facto forfeitures and in harmony with the. theory that affirmative action by the commissioner in expressly declaring a forfeiture, upon statutory grounds, and in duly making a statutory record thereof, must precede filings by other applicants. The legislative purpose seems to have been to require an official ascertainment and record of such forfeiture rather than to leave open, indefinitely, the issue of. forfeiture vel non, thereby perhaps placing upon holders of subsequently accruing rights the burden of proof. Adams v. Terrell, Com’r, 101 Tex. 331, 107 S. W. 537; Erp v. Robison, Com’r, 106 Tex. 143, 155 S. W. 180, 157 S. W. 1160.

It is to be presumed that in the enactment. of said mineral rights statute of 1913 the Legislature intended that said decisions and said settled public policy should be read into it, and that it should not be construed as contemplating ipso facto forfeitures.

The motion is overruled.


text:
    HOME INV. CO. et al. v. STRANGE.
    (No. 2516.)
    (Supreme Court of Texas.
    June 28, 1918.)
    Appeal and Error &wkey;M151(2) — Disposition
    ox Cause on Appeal — Rendition ox Judgment.
    On appeal in trespass to try title, where it appeared judgment for plaintiff! should not have been had without return of certain sums expended by defendant, the judgment will be modified on motion by plaintiff by crediting defendant with the amounts- expended, where the evidence is undisputed as to the amount, although the jury made no finding thereon.
    On motions for rehearing and to reform and affirm.
    Motion for rehearing denied and motion to reform and affirm granted.
    For former opinion, see 195 ⅞. W. 849.
   HAWKINS, J.

Upon consideration of the motion of plaintiffs in error for a rehearing we adhere to the conclusions announced in our former opinion. Accordingly, said motion will be overruled. „

Our former order remanding this cause was based upon the fact that the amounts of purchase money paid out by Moroney or under his directions had not been’ ascertained by the jury. The motion of defendant in error for a rehearing, and to reform and affirm, avers that all such amounts, and dates of payment thereof, are disclosed by the undisputed evidence of Moroney himself, and makes a tabulation of the various items, giving the largest amounts claimed by Moroney, listing several items of court costs and taxes with the admission that, possibly, they also may constitute purchase money, and requests that judgment in favor of Moroney and the Home Investment Company therefor, with interest at 6 per cent, per annum down to the date of the judgment in the trial court, be now here entered. To that request we accede. Land Co. v. McClelland, 86 Tex. 188, 23 S. W. 576, 1100, 22 L. R. A. 105; Wilkin v. Owens, 102 Tex. 197, 114 S. W. 104, 115 S. W. 1174, 117 S. W. 425, 132 Am. St. Rep. 867. The aggregate of said items, principal and interest, is $1,576.27 as calculated by counsel for Strange, but really is $1,672.11. Said motion will be granted, and the judgments of the Court of Civil Appeals and the district court, respectively, will be so reformed as to allow, as of date of the judg-, ment of the district court — July 1, 1911 — up-; on the judgment in favor of Strange for $6,600 besides interest, a credit of $1,672.11; and, as so reformed, said judgments will be affirmed.
      <©=5>For other cases see same topic and KEY^NUMBER in all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    STATE ex rel. WALTON, Tax Collector, v. YTURRIA et al.
    (No. 2993.)
    (Supreme Court of Texas.
    June 28, 1918.)
    1. Adoption <&wkey;18 — Common and Civil Law.
    Adoption was unknown to the common law, but was recognized from the earliest days in the civil law, under which it created the relation of parent and child, with the resultant rights and duties.
    2. Taxation <&wkey;875(2) — Inheritance Tax — Statute — Adopted Child as “Direct Lineal Descendant” — “Direct”—“Lineal” —“Descendant."
    Neither an adopted person nor the child of an adopted person is a “direct lineal descendant” of the adopter, within Rev. St. 1911, art. 74S7, subjecting to a tax all property within the state’s jurisdiction on its passing by will or descent to or for the use of any person, except the father, mother, wife, or direct lineal descendants of the testator, since “direct” means in. the line of descent, “lineal” means in the line of succession through lineage, and “descendant” means one who descends.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Descendant; Direct; Lineal.]
    3. Statutes <&wkey;188 — Construction—Common Words.
    Words in common use, found in a statute, must be given the sense in which they are ordinarily used.
    4. Adoption &wkey;s21 — Right of Adopted Person — Inheritance—Statute.
    When an adopted person acquires property by descent from his adopter, it is not because he is a child of the adopter, but because Adoption Statute (Rev. St. 1911, art. 2462) §§ 1, 2, puts him in the position of a child with respect to the inheritance.
    5. Taxation &wkey;>872 — Inheritance Tax — Statute — Exemption as “Privilege.”
    The exemption of property passing to certain specified classes from the payment of an inheritance tax and from the lien securing it, under Rev. St. 1911, art. 7487, confers on such classes a “privilege,” a term which includes in its ordinary definition an exemption from such burdens as others are subject to.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Privilege.]
    6. Taxation &wkey;>875(2) —Inheritance Tax-Exception — Adoption—Statute.
    In view of the adoption statute, property in Texas was not subject to an inheritance tax, under article 7487, on passing by will to persons adopted by .testator, but was subject to a tax on passing by will to children of persons adopted by the testator.
    Error to Court of 'Civil Appeals of Fourth Supreme Judicial District.
    Action by the State, on relation of W. B. Walton, Tax Collector of Cameron County, against Daniel Yturria and others. From judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which affirmed (189 S. W. 291), and the State brings error.
    Judgments of the Court of Civil Appeals and the district court reversed, and judgment rendered in favor of the state for inheritance tax on property devised to children of persons adopted by testator and against the State as to inheritance tax sued for on property devised to persons adopted by testator.
    A. M. Kent and Harbert Davenport, both of Brownsville, for the State. F. W. Seabury and R. B. Creager, both of Brownsville, and Den-man, Franklin & McGown, of San Antonio, for defendants in error.
   GREENWOOD, J.

This case presents two questions, viz.: First. Was property within this state subject to an inheritance tax, under- article 7487, R. S., upon passing by will to persons adopted by the testator? Second. Was property within this state subject to said tax, under said article, upon passing by will to children of persons adopted by the testator?

The facts show that Francisco Yturria died, without issue of, his body, on June 15, 1912, having his domicile in Cameron county, Tex., and leaving a will, duly probated in said county, whereby he devised all of his property as follows:

To his surviving' wife Felicitas Trevino de Yturria, an estate for her life in one undivided half of same.

To Daniel Yturria, who was duly adopted under the laws of Texas, on January 8, 1897, by Francisco Yturria and Felicitas Trevino de Yturria, his wife, an estate for the term of the life of Daniel Yturria in an undivided one-fourth of same.

To Ysabel Garcia, who was duly adopted under the laws of Texas, on' January 8, 1897, by Francisco Yturria and Felicitas Trevino de Yturria, his wife, an estate for the term of the life of Ysabel Garcia in an undivided one-fourth of same.

To I-Iermino Yturria and Fausto Yturria, children of said Daniel Yturria, the remainder of the property devised for his life to Daniel Yturria.

To Miguel Francisco Garcia, Juan Antonio Garcia, Jose. Alejandro Garcia, and Maria del Rosario Garcia, children of said Ysabel Garcia, the remainder of the property devised for her life to Ysabel Garcia.

To the above-named children of Daniel Yturria and Ysabel Garcia the remainder of the -property devised for her life to Felici-tas Trevino de Yturria.

It was also shown that if the property devised to the children of the persons adopted by Francisco Yturria was subject to the inheritance tax, then $4,003.11,. with 6 percent. per annum interest from June 15, 1912, would be the amount of the tax on the property in Texas devised to each of the defendants in error Hermino Yturria and Fausto Yturria, and $2,450.85, with 6 per cent, per annum interest from June 15, 1912, would be the amount of the tax on the property in Texas devised to each, of the defendants in error Miguel Francisco' Garcia, Juan Antonio Garcia, Jose Alejandro Garcia, and Maria del Rosario Garcia.

In so far as it applies to the questions presented by this record, article 7487, R. S., subjects to a tax all property within the jurisdiction of the state upon its passing by will or by descent to or for the use of any person, “except the father, mother, wife or direct lineal descendants of the testator.”

The contention for defendants in error is that our adoption statute gives to adopted persons and their legitimate children the status of natural children and grandchildren of the adopter, and that hence adopted persons and the legitimate children of adopted persons come within the meaning of the term “direct lineal descendants” as used in article 7487, R. S.

As has often been stated adoption was unknown to the common law, but was recognized from the earliest days in the jurisprudence of the civil law. Under the civil law adoption created the relationship of parent and child, with the resultant rights and duties. Had our statute declared the effect of adoption to be what it was under the civil law, or had it been silent with respect to such effect, after merely providing for adoption, the conclusion would seem correct that adopted persons and their children should be given the same legal status as natural children and grandchildren. Our statute, however, defines with precision the rights and privileges’ to which a party shall be entitled by virtue of adoption. These rights and privileges are, under article 2, R. S.:

“All the rights and privileges, both in law and equity of a legal heir of the party so adopting him: Provided, however, that if the party adopting such heir have at the time of such adoption, or shall thereafter have, a child begotten, in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him.”

The opinion of Chief Justice Willie in Eck-ford v. Knox, 67 Tex. 202, 203, 2 S. W. 372, leaves little basis for controversy as to what are “all the rights and privileges, both in law and equity of a legal heir” of the adopter. In that opinion it is declared:

“When the statute says that one person may adopt another as his heir, and that the latter thereupon becomes entitled to all the rights and privileges of a legal heir of the party so adopting him, it means that, upon the death of the adopting party, the other shall, if living, become entitled to an interest in all his property of which he shall die intestate, and shall not be wholly excluded by any class of persons whatsoever. ⅜ ⅜ * Aware that the effect of the law was to give him a child’s share of the property, the Legislature confined his inheritance under certain circumstances to one-fourth of the estate, thereby saying that in all other respects he should be entitled to all the rights and priviJ leges of a child so far as the inheritance is concerned.” 67 Tex. 202, 204, 2 S. W. 372.

The quoted language plainly rejects the civil law rule “that the person adopted stood not only himself in relation of child to him adopting, but his Children become grandchildren of such person,” as announced in the leading case of Vidal v. Commagere, 13 La. Ann. 516, and interprets our statute as substituting therefor the rule that the adopted person shall acquire only rights and privileges in the inheritance, that is, in that which passes from the adopter upon his death, and, as to such inheritance,, the rights and privileges of the adopted person are made the same as would be those of a natural child, save as restricted by the closing proviso of article 2. That the statute thus wrought an important modification of the civil law is expressly pointed out by Chief Justice Willie. 67 Tex. 204, 2 S. W. 372.

It is clear to our minds that, had the legislative intent been otherwise than as interpreted in Eckford v. Knox, we would not find in our adoption statute such deliberate avoidance of the word “child” nor such discrimi.nating use of the term “legal heir.”

On the authority of Eckford v. Knox, it was determined in Taylor v. Deseve, 81 Te.x. 249, 16 S. W. 1008, that adoption in Texas did not have the same effect as paternity and filiation, and did not make the adopted person a constituent of the family of the adopter.

The case of Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 732, presented the question as to whether a person died without “lawful children,” within the meaning of a will, when he died leaving one whom he had adopted surviving him, but leaving no natural children, and it was held that the party adopted was not a lawful child, the court saying that “an adopted heir is not in fact the child of the person adopting him.”

Adhering to the decisions cited, we conclude that in this state neither an adopted person nor a child of an adopted person is a “direct lineal descendant” of the adopter.

No other conclusion could be reached without disapproving Eckford v. Knox and without disregard of the established rule requiring us to give to words in common use, when found in a statute, the sense in which they are ordinarily used. T. & P. Ry. Co. v. Railroad Commission of Texas, 105 Tex. 393, 150 S. W. 878. Given ordinary significance, as shown by Webster’s Dictionary, “direct” means “in the line of descent,” “lineal” means “in the line of succession through lineage,” and “descendant” means “one who descends as offspring, however remotely”; and hence, as each of these three nearly synonymous words carries the concept of offspring in the line of generation, their combined use precludes our declaring others than natural offspring to be within the class of direct lineal descendants.

Section 2 of article 2462, R. S., formerly- article 1689, was held to govern the distribution of the estate of one who died leaving surviving him both a widow and also one whom he had adopted, section 2 reading:

“If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution.”

White v. Holman, 25 Tex. Civ. App. 152, 60 S. W. 438.

Although the adopted person whose rights were discussed in that case would seem to have been really entitled to the half of the land awarded her, not under section 2 of former article 1689, but under a correct construction of article 2469, then article 1696 and the adoption statute, as announced in Eckford v. Knox, because the land in controversy belonged to the community estate of the adopter and his widow, nevertheless the opinion in White v. Holman shows that the court interpreted the words “child,” “children,” and “their descendants” as not including an adopted heir. That interpretation of these words, as used throughout our statutes of descent, is believed to be sound. Having set out our reasons for this conclusion in an opinion filed to-day reversing the contrary holding of the Court of Civil Appeals in the case of Harle v. Harle, 166 S. W. 674, it is not necessary to repeat them. When an adopted person acquires property by descent from his adopter, it is not because he is a child of the adopter, but it is because the adoption statute puts him in the position of a child with respect to the inheritance.

While neither those adopted by Daniel Tturria nor their children were his direct lineal descendants, yet, as already pointed out, those adopted by him became entitled to the same rights and privileges as children with respect to that which passed to them upon his death without issue of his body.

The exemption of property passing to certain specified classes from the payment of an inheritance tax and from the lien securing same, under our statutes, clearly confers on such classes a privilege. For “the term ‘privilege’ includes in its ordinary definition an exemption from such burthens as others are subjected to, as the privilege of being exempt from arrest or from taxation.” State v. Betts, 24 N. J. Law, 557.

The Supreme Court of Pennsylvania decided in the case of Commonwealth v. Henderson, 172 Pa. 135, 33 Atl. 368, that the title to an act entitled an act to confer upon a party the privileges of a son gave notice of the purpose to confer on the party exemption from payment of any further inheritance tax than would be payable by a natural son, for the reason that “the grant of all the privileges of a son necessarily included this privilege of exemption.”

As it was the privilege of a child of Daniel Tturria under article 7487, to have property within the jurisdiction of this state pass to him, by will or descent, without payment of an inheritance tax, and as the persons adopted by Daniel Tturria were entitled, by the plain terms of article 2 to the same privilege, it follows that Daniel Tturria and Tsabel Garcia were privileged to take the property devised to them by their adopter, without payment of the inheritance tax, and the judgment of the trial court and of the Court of Civil Appeals were correct with regard to the devises to them.. But we do' not feel warranted in extending to others the rights and privileges, which are confined by the adoption statute to the adopted persons, and therefore conclude that the property devised to the children of the persons adopted by Francisco Tturria was subject to-the payment of the inheritance tax.

The judgments of the Court of Civil Appeals and the district court are accordingly reversed. It is ordered that judgment be entered denying plaintiff in error, the state of Texas, any recovery as to the taxes sued for on the property devised to Daniel Tturria and Tsabel Garcia, adopted children of the testator, Francisco Tturria, and that judgment be entered in favor of the plaintiff in error, the state of Texas, against the executor and the respective devisees for the amounts of inheritance taxes and interest shown above on the property in Texas devised by the will of Francisco Tturria to the children hereinbefore named of Daniel Ttur-ria and Tsabel Garcia, with foreclosure of the lien securing said amounts.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HARLE et al. v. HARLE et al.
    (No. 2701.)
    (Supreme Court of Texas.
    June 28, 1918.)
    1. Husband and Wife <⅞=»272 (2) — Community Property — Death of Wife — Statute.
    Land, being a part of the community estate ef a husband and wife, under Bev. St. art. 2469, as to the descent of community estate, passed on dissolution of the marriage relation by the wife’s death leaving no child or children to the husband as survivor, unless descendants of a child or children of the wife survived her.
    2. Husband and Wife <§=>274(1) — Community Property — 1“Child or Children of Deceased or Their Descendants” — Statute.
    The words “child” or “children of the deceased or their descendants,” as used in Bev. St. art. 2469, cannot be interpreted to include adopted heirs and their issue; the ordinary signification of “child” being a male or female descendant in the first degree.
    [Ed. Note. — For other definitions., see Words and Phrases, First and Second Series, Child.]
    3. Adoption <§=>18 — Status of Adopted Person.
    Under the Texas statutes, adoption does not constitute the adopted person a member of the family of the adopter, and does not confer the privileges or impose the duties which arise from the relation of parent and child, but merely puts the adopted person in a position with respect to the succession to the estate of the adopter on his death that a natural child would occupy, except that, as against a child born in lawful wedlock, the adopted person cannot take more than a fourth of the estate.

      4. Descent and Distbibution <§=»28 — Inheritance EBOM GBANDPAKENT.
    In Texas, when children of a deceased child inherit from a parent of such child, under the statutes of descent they take, not through or by representation of the parent, but directly from the deceased.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Suit by Nathan Harle and others against Bruff Harle and others, wherein the Mc-Griff heirs and the children of Amanda Slaughter, deceased, intervened. Judgment for Freeman Slaughter, subject to the rights of the children of Amanda Slaughter, for John Harle, and for Nathan Harle was affirmed by the Court of Civil Appeals, save as to the McGriff heirs, with respect to whom the judgment was reversed, and judgment rendered in their favor (166 S. W. 674), and Nathan Harle and others bring error.
    Judgment of the Court of Civil Appeals reversed, and judgment below affirmed.
    McClellan & Prince, of Corsicana, for plaintiffs. W. W. Ballew and H. S. Melear, both of Corsicana, for defendants.
   GREENWOOD, J.

The material facts showed that in 1879 Nathan Harle, who was then the husband of Gracie Ann Harle, and Freeman Slaughter, who was then the husband of Amanda Slaughter, acquired by purchase the 160 acres of land i'n controversy. By a marriage prior to that with Gracie Ann Harle KVithan Harle had three children named Bruff Harle, John Harle, and Amanda Slaughter. Under a partition between Nathan Harle and Freeman Slaughter, 40 acres of the land was set apart to Freeman Slaughter, and the remaining 120 acres was set apart to Nathan Harle. Out of the 120 acres Nathan I-Iarle and Gracie Ann Harle conveyed 60 acres to John Harle. Gracie Ann Harle had no children, but she adopted, in compliance with the Texas statute, Mary Ann Richardson, who married Wash McGriff, and Wash McGriff and his three children by Mary Ann McGriff are termed herein the McGriff heirs. Mary Ann McGriff died intestate, and at a later date Gracie Ann Harle also died intestate.

This suit was brought in the district court of Navarro county by Nathan Harle against Bruff Harle, John Harle, and Freeman Slaughter to try the title to the entire 160 acres of land. The McGriff heirs and the children of Amanda Slaughter, deceased, intervened in the suit. On a verdict directed by the court Freeman Slaughter recovered the 40 acres, which had been partitioned to him, subject to the rights of the children of Amanda Slaughter; John Harle recovered the 60 acres, which had been conveyed to him; and Nathan Harle recovered. the remainder of the land sued for. The Court of Civil Appeals affirmed the judgment of the trial court, save as to the McGriff heirs, and, with respect to them, that court reversed the judgment of the trial court and rendered judgment in their favor for an undivided half of the land adjudged below to Nathan Harle. 166 S. W. 674. Writs of error were granted the several applicants because this court was of the opinion that there was probable error in the judgment of the Court of Civil Appeals in favor of the McGriff heirs.

The land in controversy, being a part of the community estate of Nathan Harle and Gracie Ann Harle, passed under article 2469 of the Revised Statutes, on the dissolution of the marriage relation between Nathan Harle and Gracie Ann Harle by the latter’s death, to Nathan Piarle as survivor, unless descendants of a child or children of Gracie Ann Harle survived her. The Court of Civil Appeals concluded that the mother of the McGriff heirs, as the adopted heir of Gracie Ann Harle, acquired the legal status of a child, and.that hence the McGriff heirs were descendants of a child, within the meaning of article 2469.

It seems clear to us that the words “child” or “children of the deceased or their descendants,” as used in article 2469, cannot be interpreted to include adopted heirs and their issue. For, as was said in Burgess v. Hargrove, 64 Tex. 117:

“The Revised Statutes require that ‘the ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such subject-matter.’ The words ‘child or children’ are not technical terms to require the evidence of an expert to define them; and the subject-matter in reference to which they are used does not demand that they shall receive other than their ordinary signification. That hardship may result from such construction is not for the courts, but for the Legislature, to take into consideration.”

The ordinary signification of child is a male or female descendant in the first degree. As the mother of the McGriff heirs was not descended from Gracie Ann Harle, but from some other mother, she was not in fact a' child of Gracie Ann Harle, under the ordinary signification of the word child, and therefore the McGriff heirs were not in fact descendants of a child of Gracie Ann Harle. Cochren v. Cochren, 43 Tex. Civ. App. 259, 95 S. W. 732.

In Morse v. Osborne, 75 N. H. 487, 77 Atl. 403, 30 L. R. A. (N. S.) 914, Ann. Cas. 1912A, 324, an adopted person was held'not to be “issue” of his adopter, within the meaning of a statute of descent of New Hampshire, though the Supreme Court of that state gave to the word “issue” the meaning of “child, grandchild, or other lineal descendant.”

The Supreme Court of Illinois reached a similar conclusion when it said in Keegan v. Geraghty, 101 Ill. 40:

“An adopted child is not a child in fact, nor is an adopted child, having the rights of a child, a child in fact.”

The Supreme Court of Vermont was called upon to determine the status of one Amanda M. Pennock, who had been constituted by an act of the Legislature “heir at law of John B. and Sally Dunbar * * * in as full and. perfect a manner as if she had been the daughter of the said John B. and Sally Dunbar horn in lawful wedlock,” and it was held that:

“She is merely made heir at law of Mr. and Mrs. Dunbar, to share as their child. It is not enacted that she is their child, or that she is to be considered, and taken in law, to be their child. * * * We cannot go farther than the statute, which merely authorizes her to take directly as heir from Mr. and Mrs. Dunbar.” Moore v. Estate of Moore, 35 Vt. 101.

The same court, in construing another legislative enactment constituting John Chancey Chandler “heir at law” of John Bullock, declared:

“It cannot be said that the act under and by virtue of which he [John Chancey Chandler] was adopted, made him the child or issue of John Bullock. The words ‘child’ or ‘issue’ are defined to mean progeny or offspring.” Stanley v. Chandler, 53 Vt. 624.

As announced in Eckford v. Knox, 67 Tex. 200, 2 S. W. 372, adoption under our statutes does not constitute the adopted person a member of the family of the adopter, and does not confer the privileges nor impose the duties which arise from the relation of parent and child, as was the case under the civil law, but, on the contrary, the complete effect of compliance with article 1 is, as declared in article 2, to put the adopted person in the same position with respect to succession to the estate of the adopter on his death as a child would occupy, except that as against a child born in lawful wedlock the adopted person cannot take more than one-fourth of the estate. It necessarily follows that adoption in Texas does not give the adopted person the legal status of a child.

The opinion of Chief Justice Willie in Eck-ford v. Knox has been followed in the case of Walton, Tax Collector, v. Yturria, 204 S. W. 315, this day decided by this court, wherein it was determined that an adopted person was not a direct lineal descendant of his adopter, and that such person did not acquire the status of a child of his adopter. The doctrine announced in Eckford v. Knox had previously been reaffirmed in Taylor v. Des-eve, 81 Tex. 249, 16 S. W. 1008.

Under our construction of the statutes, we do not deny the adopted person any of “the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,”" to which he is entitled under article 2 B. S., but we do not extend the statute so as’ to confer rights and privileges in the estate of the adopter on others than the person adopted. The right to inherit from Grade Ann Harle was given to the person she adopted. When that person died before Grade Ann Harle, the latter’s estate could not pass to her. The adopted person acquired no right, through her adoption, to be represented by her heirs in the distribution of the adopter’s estate. Eor it is the settled law in Texas that, when children of a deceased child inherit from a parent of such child, under our statutes of descent, they take, not through or by representation of the parent, but directly from the deceased. Chief Justice Gaines, in delivering the opinion in Powers v. Morrison, 88 Tex. 139, 30 S. W. 853, 28 L. B. A. 521, 53 Am. St. Rep. 738, said that the following is an accurate, terse, and fordble statement of the law, viz.:

“The grandchildren of an intestate take by substitution, not through, but paramount to, their parent. The law designates them as a person to take a title, derived not from the parent, but immediately from the intestate. The property never was in the parent, and consequently they did not inherit from him what he had not.”

Article 2466, B. S., appears to expressly forbid recognizing any right of inheritance in the McGriff heirs, they not being “children or lineal descendants of the intestate”; for the article denies the right of inheritance to any persons whatsoever other than to children or lineal descendants of the intestate unless they are in being and unless they are also “capable in law to take as heirs” at the time of the death of the intestate, and we. have no statute conferring any right of inheritance in the estate of an adopter on the children or descendants of the adopted person. Yet “the right of succession in this state is the creature of statutory law.” Powers v. Morrison, 88 Tex. 137, 30 S. W. 852, 28 L. R. A. 521, 53 Am. St. Rep. 738.

There are decisions of other states upholding the right of children of an adopted person to inherit from the adopter. But, as pointed out in Bernero v. Goodwin, 184 S. W. 75, cited in behalf of-defendants in error, these decisions are in the main based on one of the two following propositions: (1) That “under the civil law the children of an adopted child stood in the position of grandchildren of the adopting parent,” and “since adoption was a creature of the civil law and unknown to the common law, the courts will look to the civil law for aid in construing the respective statutes”; and (2) that the term “heir,” when used in an adoption statute, “implies representation, and that therefore upon the death of an adopted child her children succeeded to her rights as heirs of the adopting parent.”

In our opinion, neither of these propositions should have controlling weight in construing our statutes. As pointed out in Eck-ford v. Knox, the civil law doctrine was so modified by the terms of our adoption statute as to preclude giving children of an adopted person the status of grandchildren of the adopter. !Amd it would be utterly inconsistent with the principles enunciated in Powers v. Morrison to extend to the children of adopted persons, by means of representation, a right of inheritance in the estate of their parent’s adopter.

We have considered the assignments of all parties, and find no error in the action of the district court or Court of Civil Appeals save as indicated above. We fully appreciate the importance of this decision, and have given it commensurate consideration.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.
      <fc=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    JOSEPH v. STATE.
    (No. 4984.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.
    On Motion for Rehearing, June 5, 1918.
    Rehearing Denied June 28, 1918.)
    1. Bail <S=>66 — Form—Appeal—Dismissal.
    In a misdemeanor case where the recogni-sance fails to name the offense for which conviction was had, as specified in the form shown in Vernon’s Ann. Code Or. Proe. 1916, art. 903, or state the pendlty assessed, the appeal may be dismissed upon motion therefor.
    On Motion for Rehearing.
    2. Assault and Battery <©=>100 — Aggravated Assault — Excessive Punishment.
    Where defendant pleaded guilty to an aggravated assault, and the evidence shows he stabbed the person named in the breast with a pocketknife striking a rib, and the record discloses no extenuating circumstances except that defendant is aged, punishment by a $200 fine and 60 days in the county jail as assessed by the jury will not be set aside as excessive.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    W. M. Joseph was convicted of aggravated assault, and appeals.
    Affirmed.
    J. E. Taulbee, of Georgetown, for appellant. E. B. Hendricks, Asst. A tty. Gen., for the State.
   MORROW, J.

This is a misdemeanor ■case in which the recognizance fails to name the offense for which the conviction was had, •or state the penalty assessed. The motion to dismiss, filed by the state, is based upon this -defect. This motion, under the decisions of this state, must be sustained. Article 903, C. C. P.; White v. State, 68 Tex. Cr. R. 147,151 S. W. 826; Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611.

The appeal is dismissed.

PRENDERGAST, J., absent.

On Motion for Rehearing.

Appellant was indicted for assault with Intent to murder, pleaded guilty to the offense of aggravated assault, and his punishment assessed by a jury at a fine of $200 and •confinement in the county jail for 60 days.

There is no complaint of the manner of the trial, but the appeal is based upon the theory that the punishment is excessive. The evidence shows that appellant inflicted a wound upon the injured party named in the indictment by stabbing or cutting with a pocketknife. The evidence is quite meager as to the character of the knife and the character of the wound. It does appear, however, that with a pocketknife he stabbed the party named in the breast near the nipple inflicting a wound about the eighth of an inch in length, striking the sixth rib on the loft side of the body, ranging upward. The record discloses no extenuating circumstances except that the appellant is an aged man, and we fail’to find the record in condition to authorize this court to disturb the verdict.

The order heretofore entered dismissing the appeal is set aside in response to the motion for rehearing, and the judgment of the lower court is affirmed.


author: PRENDERGAST, J.

text:
    LE GOIS v. STATE.
    (No. 5052.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.
    On Motion for Rehearing, June 26, 1918.)
    1. Criminal Law <S=>1173(3) — Review — Harmless Error.
    In a prosecution for unlawfully selling intoxicating liquor, where the district attorney made a remark that the evidence showed that defendant was “running a disorderly house, a place where you could take lewd women and drink beer,” refusal to instruct the jury to disregard the argument, if error, helé harmless, where jury assessed the lowest punishment.
    2. Witnesses <©=>345(4) — Impeachment op Witnesses.
    In a prosecution for unlawfully selling intoxicating liquor, where one of defendant’s witnesses testified that she had once been arrested and fined, but did not know for what, the introduction in evidence of. the judgment in the case against her showing a conviction for being a common prostitute was admissible in impeachment ; such offense imputing moral turpitude.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    J. B. Le Gois was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Affirmed, and motion for rehearing overruled.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for unlawfully selling intoxicating liquors in the city of Wichita Palls, Tex., outside of the district in said city wherein intoxicating liquors could be legally sold, under the act of March 12, 1913, p. 32 (1 Branch’s An. P. C. § 1262), and assessed the lowest punishment.

The indictment was in strict accordance with the law and properly charged appellant with the offense prescribed thereby and the law, and indictment is valid. Article 11, § 5, adopted in 1912; Act of April 7, 1913, p. 307 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i); Le Gois v. State, 190 S. W. 724; Ex parte Levine, 46 Tex. Cr. R. 368, 81 S. W. 1206; Garonzik v. State, 50 Tex. Cr. R. 535, 100 S. W. 374; Williams v. State, 52 Tex. Cr. R. 374, 107 S. W. 1121; Cohen v. Rice, 101 S. W. 1052; Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45.

It is shown herein that the city of Wichita Falls, in accordance with said law and Constitution prescribed the limits wherein sales could be legally made and wherein they could not be legally made, and the evidence was sufficient to show that appellant illegally sold, as charged in the indictment, intoxicating liquors outside of the limits where such sales could be legally made.

The evidence showing the illegal sale as alleged tended to develop that the house of appellant wherein the sale was made was a place where lewd women congregated and drank beer, which would maxe it a disorderly house. The district attorney in arguing the case said to the jury the evidence shows that “Joe Le ©ois is running a disorderly house, a place where you can take lewd women and drink beer.” Appellant asked a special charge to disregard this argument of the district attorney. The court refused to give the charge. The bill presenting this matter does not state under what circumstances nor the surroundings the language was used and does not show reversible error. Even if it had been improper, the jury assessed the lowest punishment; hence no injury to appellant is shown.

Appellant introduced a woman who testified for him under the name of Mrs. Billie Mracus. She swore that her name was Mrs. Ford Wallace, and she sometimes went under the name of Mrs. Sonora Wallace, but that her name was not Susie Wallace. She also testified that about the first of October she had been arrested and put in jail and fined for something, she claimed to not know for what, and that Mrs. Le Gois paid the fine for her. In effect, she denied that on that occasion she was prosecuted and convicted of being a common prostitute. For the purpose of impeaching her, the state introduced the sheriff, who testified in substance that on said occasion she was arrested charged with vagrancy, with being a common prostitute under the name of Susie Wallace. The state, over his objections, was then permitted to introduce a copy of the judgment of the justice of the peace in the said case against her under the name of Susie Wallace, wherein it showed she had been arrested and eharg-'ed with being a common prostitute and an order entered adjuuging her guilty and stating that the fine and costs were paid. It has always been held in this state that any witness may be impeached by proving that he had been indicted or convicted for a misdemeanor imputing moral turpitude. See Branch’s Grim. Law, § 167, where a great many cases are collated. The conviction of a woman for being a common prostitute certainly is an offense imputing moral turpitude. Sexton v. State, 48 Tex. Cr. R. 499, 88 S. W. 348; Bird v. State, 66 Tex. Cr. R. 614, 148 S. W. 738; Bogue v. State, 69 Tex. Cr. R. 666, 155 S. W. 943; 5 Words and Phrases, p. 480. Hence the state had the right to impeach her as it did.

The judgment is affirmed.

On Motion for Rehearing.

The showing made by appellant would justify the court to permit him to file his motion for rehearing at this time, and it is so ordered.

It has been duly considered upon its merits. Nothing is therein presented except what was fully considered and correctly decided against him in the original opinion.

The motion for rehearing is therefore overruled.
      other cases se© same topic and KEY-NUMBER in all Key^Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    WILSON v. STATE.
    (No. 5085.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Criminal Law <©=31056(2) — Instructions— Exceptions.
    Under the statute it is necessary to have exceptions to the charge filed before it is read to the jury, and they, cannot be filed on motion for new trial unless the matters complained of are of a fundamental nature.
    2. Criminal Law <©=3814(15, 17) — Instructions — Circumstantial Evidence — Accomplices and Principals.
    In a prosecution for hog theft, direct evidence held to connect accused with the offense as a principal though not actually present when the hogs were taken, so that it was not error to fail to instruct on the law of circumstantial evidence and as to the distinction between accomplices and principals.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    John Wilson was convicted of hog theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of hog theft and awarded two years’ confinement in the penitentiary.

The record is before us without hills of exception to' any rulings of the trial' court. The motion for new trial objects to the charge because it does not charge with reference to principals and codefenders and assigns such as error. Also, that the court failed to charge upon the law with reference to circumstantial evidence and draw the distinction between accomplices and principals. Under our statute it is requisite to have exceptions to the charge filed before it is read to the jury. This cannot be done in motion for new trial except where the matters are of a fundamental nature. We are of opinion, that this is not a case of circumstantial evidence. The theory of appellant in regard to this matter is that he was not present when the hogs were taken and had no guilty participancy in taking the hogs. Under his testimony he was not actually present, and the state’s evidence is to the effect that, while he may not have been present when the other two parties got the hogs, he was bringing his wagon to them so that they could convey the hogs to Ft. Worth, and did in fact deliver the wagon; at least, his wagon was used in hauling the hogs away. There are statements from defendant to the effect that when they got the hogs he inquired about them before he turned the wagon over, and they assured him, he says, that the hogs were all right, and that he also specifically asked with reference to where they got the hogs, and if they were stolen hogs, and kindred matters of that sort. These matters were fairly well submitted by the court in his charge. The evidence from the state’s standpoint is sufficiait to connect him with the unlawful taking as a principal, though he may not have been actually present when the hogs were taken. His connection with the matter was of such a nature that it shows he was connected with it at the time and doing his part. His honesty of purpose in doing so would be a matter of fact for the jury under the respective theories presented by the testimony. We are of opinion the case does not present reversible error as the record is made up.

The judgment therefore will be affirmed.
      <S=3Por other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    WARD v. STATE.
    (No. 5028.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    Rehearing Denied June 28, 1918.)
    Homicide <@^j244(2) — Evidence—Sueeiciency —Sele-Deeense.
    Evidence of the defendant as affected by that of other witnesses and surrounding circumstances held to present an issue of fact from which the jury was authorized to determine that defendant did not shoot deceased in self-defense.
    Appeal from District Court, Bastrop County ; R. J. Alexander, Judge.
    Roy- Ward was convicted of murder, and he appeals.
    Affirmed.
    C. W. Webb, of Elgin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

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

Neither the charge nor the rulings of the trial court in the conduct of the trial are complained of. The sufficiency of the evidence alone is assailed, and this on the proposition that appellant’s testimony showed a case of self-defense not overcome by the other evidence developed upon the trial.

The homicide took place at a gathering denominated a “supper.” On the afternoon preceding this gathering, appellant claims and testified that he and one Smith were riding to town in a buggy and overtook deceased, who insisted over their objection in riding in the buggy, and that his conduct resulted in a difficulty with Smith in which deceased wounded Smith with a knife, and afterwards chased him with rocks and ordered appellant to permit him to ride in the buggy to town, which was done. They next met at the gathering, the deceased arriving while appellant and his brother Edwin Ward were together. The deceased approached and claimed that appellant had mistreated him in failing to bring him to the supper, and said to appellant’s brother, “Edwin, didn’t he mistrear me?” to which Edwin replied that he knew nothing about it, when deceased called him a damn fool. Edwin told him not to curse him, that he did not want any fuss with him, whereupon, according to airpellant’s testimony, deceased attacked him with an opened knife in his hand. Appellant, retreating, told deceased to stop, and upon his failing to do so appellant, having backed to the wall, shot deceased. Wihen the first shot was fired the light was extinguished, and he fired a second time not knowing whether the first shot had taken effect or not. Deceased had the reputation of a dangerous man, and appellant said that he fired because of fear deceased would kill him with the knife. Deceased was shot twice in the breast with a 45-caliber pistol. Edwin Ward, brother of appellant, described the occurrence as follows:

“When deceased walked up, he said to appellant: ‘You mistreated me. X was aiming to come out with you to the supper.’ Appellant replied, ‘I was not aiming to come with you.’ ”

Deceased then said to witness, “Didn’t he mistreat me?” Witness replied, no, he did not have anything to do with it, and deceased said, “God damn you! Why don’t you?” Witness told deceased not to curse him, and appellant said, “Don’t curse.” 'Deceased then cursed appellant and started at him with a knife. Appellant told him to stop, and, when deceased failed to do so, fired at him. The state’s witness Vincent testified that he went into the room where Edwin Ward and deceased were fussing and told them to stop, pushed them apart, and deceased pushed witness back; that Edwin Ward did nothing, hut said, “You son of a bitch, I am not scared of you,” and deceased replied, “No, you God damned son of a bitch, I am not scared of you,” and about that' time the gun was fired, the witness thought, over his shoulder. It burned his face. He declared that prior to the shot deceased made no demonstration to draw a pistol, and went out in the yard and fell. Deceased made a res gestae statement to the effect that Edwin Ward shot him. The state controverted the possession or exhibition of a knife by deceased. None was seen by state’s eyewitnesses nor found at the scene of the homicide.

Without review of the evidence in detail, it is sufficient to justify the inference by the jury that appellant, after the occurrence in the buggy in which the difficulty between Smith and deceased took place, and after deceased had made appellant bring him to town in the buggy, expecting deceased would appear at the gathering, attended it armed with a pistol. And it appears on their meeting a quarrel ensued, participated in by appellant, his brother and deceased, in which appellant shot deceased and killed him; he claiming at the time the shots were fired deceased was attacking him armed with a knife. There is a direct conflict between the theory and testimony of appellant as to what occurred at the time of the homicide and that developed by the state’s witnesses, the state’s theory being that appellant shot the deceased while he was engaged in a quarrel with Edwin Ward; that deceased was making no assault or threatened assault upon appellant and was not aware of the fact that appellant shot him, but believed that Edwin Ward shot him. In fact, the state’s eyewitnesses were not able to say that appellant fired the shot. Vincent claimed the shots were fpred over his shoulder and burned his face, and that Edwin Ward did not shoot them. The officers in their search for Edwin Ward found appellant who admitted that he had killed deceased, and exhibited and delivered to them a pistol. If the theory is presented that appellant shot in defense of his brother Edwin, there would still be an issue of fact, especially in view of the fact that from the state’s witnesses it appears that before the shooting took place Edwin Ward called the deceased a son of a bitch. The circumstances attending the homicide, in our opinion, present an issue of fact from which the jury was authorized to determine that appellant was not acting in self-defense in shooting deceased.

The judgment -if the lower court is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOBB.OW, J.

text:
    LOZANO v. STATE.
    (No. 5079.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Criminal Law ®=>1120(6) — Afpeal — Statement oe Facts ob Biel of Exceptions — Evidence of Other Crimes — Presumption.
    There being contingencies on which the stabbing of another by defendant, long before the trouble in question, would be admissible, and the presumption being of correct ruling, merits of the admission cannot be passed on, in the absence of statement of facts or bill of exceptions making the necessary showing as to the state of the evidence.
    2. Criminal Law <S=>1126 — Appeaia-Record —Suspended Sentence.
    That failure to suspend sentence may be complained of on appeal, the record must show defendant’s application for suspension, necessary under Vernon’s Ann. Code Or. Proc. 1916, art. 865c.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Joe Lozano was convicted of assault with intent to murder, and appeals.
    Affirmed.
    Sid Overton, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MOBB.OW, J.

Appellant under indictment for assault with intent to murder stands convicted with punishment assessed at confinement in the state penitentiary for a period of two years.

The record comes without statement of facts. There is one bill of exceptions, the substantial part of which we copy:

“Be it remembered that upon trial of the above numbered and entitled cause the state’s witness Paul Hensen, being upon the stand, the witness was permitted, over objection of defendant, to testify the following facts, to wit: That about three years prior to the date of this trial, in a difficulty between witness Paul Hensen and defendant, defendant Joe Lozano stabbed said witness in the back with a knife; and defendant at the time it was offered objected to said testimony for the reason following, to wit, because said testimony was irrelevant, immaterial, and was calculated to, and did prejudice the minds of the jury against the defendant; further, that the same was calculated and did place the defendant’s reputation and character in issue before the jury, when the same had not been placed in issue by the defendant himself.”

We are not ahl'e to pass upon the merits of the contention suggested by the bill for the reason that the absence of statement of facts deprives us of the information from which we would be able to determine the admissibility of the testimony complained of. There are contingencies upon which such testimony would be admissible. For instance, the assault upon which the conviction is founded may have been directly related to the previous assault referred to in the bill. The suggestion therein that it bears upon the character of appellant, if correct, is not available for the reason that the court is not able to determine that there was not evidence in the case which made ⅜ admissible for the state to introduce evidence upon the character nor that this particular fact was not one relevant to some phase of the evidence making it legitimate testimony. In the absence of a statement of facts or bill of exceptions informing the court to the contrary, the presumption is indulged in favor of the correctness of the court’s ruling. Branch’s An. P. O. p. 132.

Appellant in his brief makes some reference to an application for a suspended sentence. Its applicability to the record is not apparent for the reason that we fail to find any reference to it in the record certified. The procedure on the subject is set out in article 865c, C. C. P. See Vernon’s Crim. Stats, vol. 2, p. 859.

Finding no error in the record, the judgment is affirmed.
      <@r^>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes