author: MOURSUND, J.

text:
    FLORES v. FLORES et al.
    (No. 5975.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.)
    1. Appeal and Error <&wkey;742(l) — Assignments of Error — Necessity of Propositions.
    Assignments of error which are not followed by propositions, and which are not susceptible of being considered propositions in themselves, will not be considered.
    2. Cancellation of Instruments <&wkey;38 — Plea for Rescission — Sufficiency.
    In a suit in which plaintiffs, husband and wife, sought specific performance of a compromise agreement, whereby defendant agreed to deed the wife 2,800 acres of land, an answer admitting that defendant hád tendered a deed conveying only a life estate, and had refused to execute a quitclaim deed, and alleging that such quitclaim deed was never contemplated in making such contract, in that it was intended by defendant, and had always been his intention, to allow the wife the full use of whatever land she might be entitled to under a will, and that he was still willing to carry out the intent of such will as well as the contract, was not a plea for rescission of the contract on the ground of fraud, mutual mistake, or mistake of defendant, accompanied by inequitable conduct of plaintiffs, but simply a plea that the contract did not express defendant’s intention.
    3. Specific Performance <&wkey;117 — Pleading —Evidence Admissible Under Pleadings.
    In a suit in which plaintiffs sought specific performance of a compromise agreement, whereby defendant agreed to give one plaintiff a deed to 2,800 acres of the land devised to him, and such plaintiff by a will providing that if either of the beneficiaries should die without issue the whole of the estate should go to the survivor or his or her issue, and whereby such plaintiff agreed to accept such land in full satisfaction of all claims, and to release and quitclaim to defendant all right and title to the balance of the land, the answer admitted that defendant had tendered such plaintiff a deed conveying only a life interest, and had refused to execute a quitclaim deed for the reason that' such deed was never contemplated in their contract in that it was intended by defendant, and had always been his intention, to allow such plaintiff the full use of whatever land she might be entitled to under the will. Held, that this pleading was wholly insufficient to authorize proof of an intention other than that deducible from the language of the instrument, as it was not alleged that the language used was ambiguous and intended to express an agreement actually made for the conveyance of a life, estate, and there was no allegation that the word “deed” was used as meaning “convey a life estate,” and that such meaning should bo given it in order to carry out the intention of the parties.
    4. Wills <&wkey;740(4) — Contract Between Devisees — Construction — Estate to be Conveyed — “To Deed Land.”
    The only reasonable construction of which the instrument was susceptible was that defendant agreed to convey to such plaintiff such estate as he had in the 2,800 acres, and that she agreed to convey to him all the balance of the land, and thereunder such plaintiff was entitled to the fee-simple estate in the 2,800 acres, especially as, in ordinary language, the term “to deed land” means to convey in fee simple, and also in view of the statute providing that an instrument conveying land transfers a fee-simple estate, unless a less estate is limited by express words.
    5. Evidence <&wkey;461(4) — Parol Evidence to Vary Writing — Intention of Parties.
    In the absence of fraud or mistake sufficient to cancel the instrument or an intention by both parties that the words of the instrument should express a meaning different from their ordinary meaning, defendant was bound by the intention derived by giving_ the language its common and ordinary meaning, and evidence that defendant’s real intention was not expressed in the agreement which he signed was not admissible.
    Appeal from District Court, Webb County; J. F. Mullaly, Judge.
    Suit by Eulalia Dominguez De Flores and husband against Filimon Flores. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. A. Winslow and Paul W. Evans, both of Laredo, for appellees.
   MOURSUND, J.

Eulalia Dominguez De Flores, joined by her husband,' F'ederico Flores, sued Filimon Flores for the partition of several tracts of land, which had been owned by E'stanislado Flores and his wife, Leonarda Benavides Cuellar, foster parents of plaintiff and defendant. The record discloses that Estanislado Flores left a will bequeathing to his wife all of his property, “to' have and to hold during her natural life, and at her death to be equally divided between Filimon Flores and Eulalia Dominguez,” and providing further, “In case either of the beneficiaries should die without issue, then the whole of the estate shall go to the survivor or his or her issue.” His wife, by a will executed many years later bequeathed all of her real estate to Filimon Flores. A controversy arose between the foster children with regard to their respective rights under the wills and the partition suit resulted in which Eulalia Dominguez De Flores claimed half of the lands. During the pendency of the suit the parties entered into the following agreement of compromise:

“This agreement made and entered into by and between Filimon Flores and Eulalia Dominguez De Plores and husband, Federico Flores, witnesseth: ' •
“All matters in controversy and in suit be* tween said Filimon Flores and said Eulalia Dominguez De Flores and her husband are hereby settled as follows, to wit:
“First. Filimon Flores has paid and hereby pays to Eulalia Dominguez DeJTlores the sum of one hundred and ten dollars which is in full of all monetary claims or demands of every kind which said Eulalia Dominguez De Flores has against said Filimon Flores, and said Eu-lalia Dominguez De Flores accepts and receives said sum of one hundred _ and ten. dollars in full satisfaction, as aforesaid; and it is agreed that neither party now owes the other any money for any claim whatsoever.
“Second. Filimon Flores agrees to give to Eulalia Dominguez De Flores a deed to two thousand eight hundred acres of the land involved in the suit filed by said Eulalia Dominguez De Flores and out of the Peredana Grant, which said 2,800 acres shall include La Leona water hole or tank, as soon as such acreage shall have been surveyed by a competent surveyor to bo mutually selected, and that he, Filimon Flores, will pay one-half 9f the cost of such survey, and Eulalia Dominguez De Flores and husband, Federico Flores, will pay the other half of such cost.
“Third. Immediately after such survey a division fence shall bo constructed, each of the parties hereto paying one-half of the cost of same.
“Fourth. Said Filimon Flores agrees that the cattle belonging to said Eulalia Dominguez De Flores in his possession may be separated and sot apart to her by three disinterested persons to be selected and agreed upon by said Fili-mon Flores and said Eulalia Dominguez De Flores.
“Fifth. The costs of the suit filed by said Eulalia Dominguez De Flores and husband against said Filimon Flores shall be paid according to the proportions of the property involved owned by the respective parties; viz.: Three-fourths of such costs by Filimon Flores and one-fourth by Eulalia Dominguez De Flores.
“Sixth. The said Eulalia Dominguez De Flores accepts the above specified property in full satisfaction of any and all claims of every kind and character which she may have in the property involved in said suit, or against said Filimon Flores, and upon delivery of the deed to her of said 2,800 acres, she will absolutely release 'and quitclaim to said Filimon Flores any and all right, title and interest she may have in and to any and all of the balance of said land, and receipt said Filimon Flores in full for any and all claims of • any kind and character she may have against him.
“Witness the hands of the parties hereto, at Zapata, Texas, 'this 8th day of July, A. D. 1916.
“[Signed! Filimon Flores. “[Signed] Eulalia Dominguez De Flores.
“[Signed] Federico Flores.
“Witnesses: [Signed] W. W. Winslow.”

The agreement was carried out in all respects except for the exchange of the deeds therein provided for, and after the survey was made and fence built pursuant to the agreement, and possession of the 2,800 acres given to Eulalia De Flores, defendant tendered her a deed for the 2,800 acres, which conveyed only a life estate. She declined to accept such deed, and demanded a conveyance of the fee-simple title to such land, either by warranty or quitclaim deed. He refused to comply with this demand, whereupon plaintiffs amended their original petition so as to demand specific performance of such compromise agreement.

Paragraphs 5 and 6 of defendant’s answer constitute all of his pleadings with regard to such agreement, and read as follows:

“Fifth. Specially .answering to paragraph fifth of plaintiffs’ second amended original petition, defendant admits that on or about the 8th day of July, A. D. 1916, that there was a contract in writing executed by and between the parties hereto, both relevant to matters raised by the pleading herein as well as other matters over which no suit had been filed, and that all such questions and claims as well as those arising herein were settled in said agreement; that the lands mentioned in part in plaintiffs’ second amended original petition were partitioned between the plaintiff and defendant in the proportions alleged in said fifth paragraph, and in pursuance of said agreement to partition said lands defendant prepared a partition deed containing the field notes of the land agreed upon by the parties to bo set aside for the use and benefit of plaintiff, a copy of which said partition deed is attached hereto as exhibit A, which said partition deed was refused both by plaintiff and her attorney.
“Sixth. Replying specially to plaintiffs’ sixth paragraph in said second amended original petition, defendant admits so much thereof as describes the survey made, and that after defendant had offered his partition deed heretofore mentioned to plaintiff, that plaintiffs offered defendant their quitclaim deed to all the balance of the land in controversy, and that defendant refused to execute a quitclaim deed to the plaintiffs herein for the reason that same was never contemplated in their contract settling the matters in controversy between the parties hereto, in that it was intended by defendant and has always been his intention to allow plaintiff the full use of whatever land she may be entitled to under the last will and testament of Estanislado Flores heretofore mentioned, and defendant is still willing to carry out the intent of said last will and testament, as well as the contract heretofore signed by plaintiffs and defendant, and tenders said partition deed attached hereto as an exhibit for execution by the parties to this suit. Defendant denied that plaintiffs are entitled for more than the possession of the 2,800 acres mentioned in said petition during the lifetime of the said Eulalia Dominguez De Flores, and that such right of possession is limited to the life estate only of the said Eulalia Dominguez De Flores, ..and of this he puts himself upon the country.”

The court rendered judgment in favor of plaintiffs for the 2,800 acres of land, reciting that the compromise agreement had been entered into, and that under its provisions plaintiffs were entitled to such land.

Objection is made to the consideration of appellant’s assignments of error on the ground that the same are not followed by propositions as required by the rules. As the assignments are not susceptible of being considered propositions in themselves, the objection must be sustained. However, the judgment is the only one which could have been legally rendered under the pleadings and the facts. Defendant’s answer, in so far as it undertook to give a reason for not conveying to Mrs. Eulalia Flores the 2,800 acres of land, is to the effect that such a conveyance was never contemplated in their contract settling the matters in controversy in that it was intended by defendant and has always been his intention to allow plaintiff the full use of whatever land she may be entitled to .under the will of Estanislado Flores, and that defendant is still willing to carry out the intent of said will as well as the contract signed by plaintiffs and defendant. This does not constitute any plea for rescission of the contract on the ground of fraud, mutual mistake, or mistake of defendant accompanied by inequitable conduct of plaintiffs, but is simply a plea that the contract does not express the intention of defendant. It is not alleged that the language used in the contract is ambiguous, and that by such language it was intended to express an agreement actually made by the parties to the effect that defendant should convey Mrs. Flores a life estate in 2,800 acres. There was no allegation that the word “deed” was used in the sense of “convey a life estate,” and that such a meaning should be given it in order to carry out the intention of the parties to the agreement. The pleading was wholly insufficient to authorize proof of an intention other than that deducible from the language of the instrument. An examination of the instrument shows that defendant agreed to “deed” Mrs. Flores 2,800 acres of land, and upon the delivery of such “deed” to her she would release and quitclaim to him any and all right, title, or interest she had in and to all of the balance of said land. If it had been intended that the title to the fee of the 2,800 acres should be determined by the wills, the instrument would not have constituted such a settlement as it purported to constitute. If it had been intended that Mrs. Flores should convey to defendant the fee in the 2,800 acres, such intention would have been expressed, as it was too important a matter to be overlooked. The only reasonable construction of which the instrument is susceptible is that- defendant agreed to convey to Mrs. Flores such estate as he had in the 2,800 acres, and she agreed to convey to him all the balance of the land. This construction is fortified by the fact that in ordinary language the term “to deed land” means to convey in fee simple, and by our statute which makes an instrument whereby land is conveyed transfer a fee-simple estate, unless a less estate is limited by express words. We believe the court was correct in holding that under the agreement Mrs. Flores was entitled to the fee-simple estate in the 2,800 acres of land. The testimony excluded by the court as shown by defendant’s bill of exceptions could not have altered the construction of the instrument. It would not have shown that the parties agreed on a life estate and undertook to express that agreement by using the word “deed” in a limited or restricted sense, but would merely have shown that defendant’s real intention was not expressed in the agreement which he signed. In the absence of fraud or mistake such as would be sufficient to cancel the instrument, he is held to the intention derived by giving the language its common and ordinary meaning, unless he can show that both parties intended certain words to express a meaning different from the ordinary meaning. He was not asked, nor would he have answered, what conversation took place when the terms of the agreement were arrived at, but merely what he intended to give his sister.

We consider the language of the agreement so plain and unambiguous that no verbal testimony was admissible to explain the same. But, regardless of the correctness of our opinion on that point, as the pleading was insufficient to raise an issue of ambiguity, and in addition the testimony excluded, if admitted, would not have affected the construction of the instrument, and was immaterial in the absence of a plea of fraud or mistake, the judgment must be affirmed.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. HOWARD et al.
    (No. 1782.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 23, 1918.
    Rehearing Denied Feb. 14, 1918.)

    1. MASTER AND SERVANT &wkey;>2.76(10) — INJURY to Servant — Acts within Scope oe Employment-Superintendent.
    From the fact that deceased railroad employs, killed by moving cars against standing cars, was superintendent of that division of the road, if it could not be said as matter of law, the jury could at least find that ho was acting within the scope of his employment, when on the separation of the train, by a drawhead falling out, he went between cars where switch-men were replacing it, and this though he took hold of it and endeavored to assist them.
    2. Master and Servant <&wkey;278(18) — Injury —Negligence—Suettciency op Evidence.
    Evidence held sufficient to support finding of want of care of engineer, who moved cars against -standing ears, where train had separated, killing employé assisting in replacing drawhead.
    3. Evidence <&wkey;590 — Credibility—Interest oe Witness — Party Causing Injury.
    Relative to credit to be given defendant’s engineer, who testified that he did not see the signals to stop the engine, the jury could consider his interest, by reason of having caused the accident.
    4. Master and Servant <&wkey;281(2) — Contributory Negligence — Weight and Suejt-ciency oe Evidence.
    Relative to contributory negligence of superintendent in' going and remaining between standing cars whore switchmen were endeavoring to replace a drawhead, which had fallen out, the jury could say that he, when he reached the place, and saw the train, to which the engine was attached, standing still, and the switchmen so working, between the cars, might well have concluded, exercising proper care, that the engineer had been signaled not to move his engine, and would obey tho signal.
    5. Death <&wkey;99(4) — Excessive Damages.
    Verdict of $17,000 in favor of the only minor child, a girl of 10 years, for death of a widower 57 years old, with a life expectancy of 15% years, receiving a salary of $3,000 a year, he being devoted to her and being a man of fine character and exemplary habits, cannot be held excessive.
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Helen Campbell Howard and others against the Texas & Pacifie Railway Company. Erom an adverse judgment, defendant appeals.
    Affirmed.
    March 29, 1904, E. W. Campbell, then superintendent of the Eastern division of appellant’s line of railway, was crushed 'between two cars forming parts of one of appellant’s trains then near the Union Depot in Dallas. He died shortly afterwards from the effect of the injuries he suffered, leaving surviving him a daughter, appellee Helen Campbell Howard, then 10 years of age, and a son, R. W. Campbell, then 27 years of age. On the theory that the death of said E. W. Campbell was due to negligence on the part of the engineer in charge of one of appellant’s engines, rendering it liable to her and her brother, the daughter commenced this suit for damages by a petition filed October 21, 1915. September 5, 1916, she married appellee R. G-. Howard, who became a party plaintiff with her by a supplemental petition filed September 25, 1916. Briefly stated, the circumstances of the accident were as follows: A train consisting of about 20 cars was being moved west on the main line track, when the draw-head of a car near the middle of the train pulled out and fell to the ground, about the point where appellant’s track crossed Hawkins street. The effect of this was to separate the train into two parts, as the car from which the drawhead was pulled and those east of it stopped, while the engine and other cars moved on west about 12 feet before they stopped. Kelley and Core, switchmen, at once went to where the drawhead fell, and, having picked it up, were endeavoring to replace it in the car when the deceased went to them. While Kelley and Core were engaged in the work, the deceased assisting them, the engine and ears which had moved west as stated moved east, colliding with the car deceased and Kelley and Core were working with, crushing deceased as stated, and injuring both Kelley and Core. The appeal is. from a judgment in favor of Mrs. Howard for $17,000.
    E. I-I. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, T. P. Harte, of Douglas, and Mahaffey, Keeney & Dalby, of Texarkana, for appellees.
   WILLSON, C. J.

(after stating the facts as above). Appellant insists that the deceased was not engaged in the performance of duty he owed to it as its division superintendent at the time he was injured, and that in going between the cars as he did, and assisting Core and Kelley in replacing the draw-head he was performing service outside of the scope of his employment, and that it therefore owed him no duty except the duty not to willfully injure him. The rule of law invoked has been stated as follows:

“If an employe quits the work assigned to him by his employer, and voluntarily undertakes to do work about which ho had no duties to perform by virtue of the contractual relations existing between him and his employer, then, while such condition exists, the duty growing out of that relation of using care for his safety does not rest upon the -employer.” 4 Labatt’s Master and Servant, § 1565.

As we view the testimony, if it did not appear therefrom as a matter of law that the rule invoked was inapplicable to the case, it presented a question as to whether the deceased was at the time acting within the scope of his employment or not, which should have been submitted, as it was, to the jury. There was no testimony showing what the deceased’s duties were further than might be inferred from, proof that he was superintendent of the division of appellant’s line of railway, which included the place where the accident occurred, and as such had authority to direct train operatives and power to discharge them. From those facts we think the jury had a right to find that the deceased was acting within the scope of his employment when he went between the cars and remained there as he did. A “superintendent” is “one who superintends or has the oversight and charge of something, with the power of direction.” Century Dictionary. We think the jury had a right to conclude that it was the deceased’s duty, because he was “superintendent” of the division, to see to it that Core and Kelley without unnecessary delay properly replaced the drawhead, so that the train could be moved and the main line track cleared for another train shown to have been waiting to pass over it. If it was his duty •to do that, he had a right, exercising proper care for his own safety, to go to the 'place from which he thought he could most effectively discharge the duty. As we see it, while the fact that he chose a pdace between the cars might be important in determining whether he was guilty of contributory negligence or not, it is of no importance in determining whether he was acting within the scope of his employment or not. If the deceased was performing duty he owed to appellant when he went between the cars to superintend the work Core and Kelley were engaged in doing, that he took hold of the draw-head and endeavored 'to assist them in replacing it, when it was not, it is insisted, his duty to do so, did not, we think, bring him within the rule invoked by appellant.

Appellant further insists that, if the deceased was not in the attitude of a volunteer or mere licensee, and it owed him a duty, under the circumstances of the case to use care to avoid injuring him, there was no testimony to support the finding that it did not use care. It appeared that the train was headed east, and consisted of about 20 cars. It was on the main line track, and was being moved by a switch engine, also headed east, coupled to its west end. The engineer in charge of the switch engihe testified that he was directed by a signal from the switching crew to move the train east, the purpose being to get it out of the way of a work train waiting to pass it from the west. He said he tried to move the train east and could not, and thereupon pulled west 8 or 10 feet to “take slack” to got momentum sufficient to move the train when he reversed his engine and moved it east. He did not know, he said, that the drawhead pulled out when he moved the engine west, leaving part of the train 'on the east side of Hawkins street, but, believing that in moving west he had only taken up the slack in the train, and not having seen the signals to not move the train which Core and Kelley, the switchmen, testified they gave him, he moved the train east in obedience to the signal to him to so move it. Appellant’s contention is based on the testimony of the engineer, just recited, that he had been signaled to move the train east and did not see the signals to him by Core and Kelley not to move the engine. His statement that he had been signaled to move east was directly contradicted by Core, who testified, that the signal given the engineer was to move the train west, not east, and in effect by Kelley, who testified: “We were going west until we got on the switch, then going east again.” Moreover, it appeared from the testimony that it was the duty of the engineer to look for signals, and, further, that, if he looked, he must have seen the signals Core and Kelley gave him to stop the engine. The jury were not bound to believe the engineer, but had a right to conclude from the fact that he had an interest in the controversy, and, from other circumstances shown by the testimony, that he saw the signals and ignored them. Knights of Maccabees v. Johnson, 143 S. W. 718; Railway Co. v. Tinon, 117 S. W. 936.

It is further insisted that it appeared from the evidence that the deceased in going and remaining between the cars as he did was guilty of contributory negligence, and therefore that the verdict of the jury was contrary to the evidence. We do not think it so appeared. The jury had a right to say that the deceased, when he reached the place of the accident and saw the part of the train to which the engine was attached standing still and Core and Kelley between the cars endeavoring to replace the drawhead, might very well have concluded, exercising proper care, that the engineer had been signaled not to move his engine and would obey the signal.

It is further insisted that the verdict is excessive. It appeared that the deceased at the time of his death was 57 years old; that his life expectancy was 15% years; that he was receiving a salary of $3,000 per annum; that he was a. widower; that Mrs. Howard, a child then 10 years old, and a son then 27 years old, were his only children; that he was devoted to his daughter; and that he was a man of fine character and most exemplary habits. We do not think, in view of those facts, it should be held that the verdict was excessive.

Assignments presenting other objections than ithose discussed to the judgment areover-ruled, because we do not think any of them shows error requiring a reversal of the judgment.

The judgment is affirmed.
      g^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    GARNER v. BROWN et ux.
    (No. 1899.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 17, 1918.)
    Appeal and Error <&wkey;1001(l) — Scope of Review-Question of Fact.
    In suit to cancel deed on ground that it was a mortgage upon a homestead, where plaintiff and his wife gave testimony warranting conclusion that deed was a mortgage, which was denied by defendant, a judgment for plaintiffs would be affirmed, since there was an issue for the jury.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Suit by A. G. Brown and wife against J. R. Garner. Decree for plaintiffs, and de-
    fendant appeals.
    Affirmed.
    F. B. Martin, of Longview, for appellant. Edwin Lacy and E. M. Bramlette, both of Longview, for appellees.
   HODGES, J.

The appellees, husband and wife, filed this suit to cancel a deed which they had previously executed, alleging that it was a mortgage upon their homestead. In response to special issues submitted, the jury found that the land involved was the homestead of appellees, and that the deed assailed was executed and intended to operate as -a deed of trust to secure the payment of a debt. The assignments of error attack the sufficiency of the evidence to support the finding last above mentioned. The appellee and his wife both testified to a state of facts which, if true, fully warranted the jury in concluding that the deed was a mortgage. While this testimony was, in substance, denied by the appellant, there was an issue for the jury, and the judgment will be affirmed,


text:
    TURNER v. BROWN.
    (No. 1914.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1918.)
    Parent and Child &wkey;>16 — Emancipation-Effect.
    If a claimant of property levied on under execution against his father was emancipated by his father at the age of 17, and afterwards did business for himself and in his own name, and rented land and grew the cotton levied on at his own sole charge and expense, the cotton belonged to him, and not to his father.

      Appeal from Hopkins County Court; T. J. Tucker, Judge.
    J. F. Turner caused execution to be levied against certain cotton, and Victor A. Brown filed affidavit and bond to try tifie right of property. Judgment for Brown, and Turner appeals.
    Affirmed.
    M. D. Oarlock, of Winnsboro, for appellant. G. H. Crane, of Sulphur Springs, and A. B. Crane, of Matador, for appellee.
   WILLSON, C. J.

Appellant caused an execution issued on a- judgment he had obtained against one W. O. Brown to be levied on a bale and a half of cotton grown by ap-pellee (a minor son of said Brown) on land he (appellee) rented of one Greer. Appellee claimed to own the cotton, and filed an affidavit and bond to try the right of property therein as provided by the statute. .Article 7769 et seq., Vernon’s Statutes. The judgment appealed from was in his favor. Conceding that appellee 20 years old at the time of the trial, was emancipated by his father when he was 17 years of age, that ever there-afterwards he did business “for himself and in his own name,” and that he rented land and grew the cotton in question thereon at his own sole charge and expense, appellant insists that the cotton, nevertheless, belonged to appellee’s father and was subject to the execution levied on it. That the law is to the contrary of appellant’s contention is well established. 29 Cyc. 1625, 1626, 1628; Furrh v. McKnight, 6 Tex. Civ. App. 583, 26 S. W. 95.

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


author: SWEARINGEN, J.

text:
    SOUTHWESTERN SURETY INS. CO. v. CURTIS et al.
    (No. 5964.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Thiai, &wkey;3352(l) — Special Issues — Form-Questions or Law.
    The special issue, did employer have “in-force” employers’ liability insurance with defendant? clearly submitted question of fact as to whether insurance contract had been canceled before date of injury; the quoted words not presenting a question of law.
    2. Trial &wkey;>252(12) — Issues — Support by Secondary Evidence.
    Where the existence of a contract sued on was sufficiently proved by secondary evidence and defendant’s admissions, it was not error to submit issues as to whether the contract had been canceled, although the contract, which was in possession of defendant, had not been introduced.
    3. Master and Servant <&wkey;276(l) — Employers’ Liability Insurance — Evidence.
    Evidence held to justify finding that, at the time intestate was injured, his employer had a contract with defendant, obligating defendant to pay in accordance with Employers’ Liability Act.
    4. Master and Servant &wkey;>375(l)— Workmen’s Compensation — Course op Employment.
    Where intestate was injured while working on employer’s barn, under its orders and control and for its benefit, he was injured in the course of his employment.
    5. Master and Servant <&wkey;383 — Workmen’s Compensation Insurance — Liability—Notice.
    Defendant’s liability to pay compensation under its contract of employers’, liability insurance did not depend upon notice of the contract by defendant to the Industrial Accident Board pri- or to the injury.
    6. Master and Servant <&wkey;383 — Workmen’s Compensation Insurance —Notice op Injury.
    It was immaterial when the employer notified the Industrial Accident Board of its insurance contract with defendant; the only notice required being notice of employé’s injury within a reasonable time to defendant and the board.
    7. Master and Servant &wkey;s414 — Industrial Board — Jurisdiction.
    The jurisdiction of the Industrial Accident Board to adjust a claim against an employers’ liability insurer attaches as soon as claim for compensation for injuries to employé is filed.
    8. Master- and Servant <&wkey;416 — Final Award op Industrial Accident Board.
    A final award of the Industrial Accident Board would bind all parties before it, unless prior to such award the insurer manifested its objection to the adjustment and its refusal to abide by the final decision of the board; an objection and refusal, timely made, depriving board of right to proceed further.
    9. Master and Servant &wkey;»414 — Industrial Accident Board — Jurisdiction—Consent op Parties.
    Where the employer expressed its consent by becoming a subscriber to the employers’ insurance association, the insurer obtained its license and permit and issued the policy, and claimant filed claim for compensation, there was consent of all parties interested, required to give Accident Board jurisdiction.
    10. Master and Servant &wkey;>411 — Workmen’s Compensation Act — Suit on Award —Extent op Reliep.
    .Where the Industrial Accident Board, under the Employers’ Liability Act, awarded to plaintiff widow a weekly allowance, and on default in payment of such allowance she sued the insurer, the court, though it properly gave judgment establishing the validity of the award, should not have given judgment and execution' for installments which had not accrued.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Suit by Mary M. Curtis and others against the Southwestern Surety Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Reformed and affirmed.
    Hertzberg, Kercheville & Thomson, of San Antonio, for appellant. Ryan & Matlock, of San Antonio, for appellees.
   SWEARINGEN, J.

Appellee Mary M. Curtis, for herself and for the use and benefit of her two minor sons, Lurean and David Pettyjohn, instituted this suit against the appellant, Southwestern Surety Insurance Company, to recover compensation for the death of Edward H. Pettyjohn, her husband, and the father of the two minors. T. B. Curtis, husband of Mary M. Curtis, joined his wife in the suit pro forma. Special issues were submitted to a jury, and judgment rendered against appellant for $1,489.40, the amount of the matured installments, together with interest from the date of the judgment, and for $2,386.50, payable in weekly installments of $10.50 each, the first weekly installment to be paid on the 2d day of June, 1917, and one installment each and every week thereafter until the full sum of $2,386.50 shall have been paid.

It is alleged that Edward H. Pettyjohn, on and prior to November 8, 1914, was in the employ of the Russell-Coleman Cotton Oil Company; that he received a salary of $100 a month, paid as follows: $75 a month paid in cash, and the balance paid by the use of a dwelling furnished by the Oil Company, which was of the reasonable value of $25 a month. It is alleged that Pettyjohn, while in the general course of his employment, and working for said Russell-Coleman Cotton Oil Company under its instructions and for its benefit, was injured by stepping on a nail projecting from a board lying on the ground on the premises of said employer company, that the nail penetrated Pettyjohn’s foot, inflicting serious injury; which injury caused blood poison and tetanus, resulting in the death of Pettyjohn on the 16th day of November, 1914. It is further alleged that the Russell-Coleman Cotton Oil Company was a subscriber to the Texas Employers’ Insurance Association at the time of the injury, and that on the day of the injury and prior thereto the appellant insurance company had obligated and bound itself to pay to the employes of the Russell-Coleman Cotton Oil Company, or to the representatives and beneficiaries of such employés, such damages or compensation as should be awarded against it by the Industrial Accident Board of the state of Texas on account of personal injuries or death sustained by the said employes while in the course of employment; that said appellant company received a license and permit from the commissioner of insurance and banking of the state of Texas to issue policies of insurance under said Employers’ Liability Law. It was also alleged that the accident and injury to Pettyjohn was reported by the subscriber, Russell-Oole-man Cotton Oil Company, to the Industrial Accident Board at Austin, Tex., on November 25, 1914, within a reasonable time after the death of Pettyjohn, and that the accident and injury were duly reported to the appellant insurance company. It was further alleged that within six months after the death of Pettyjohn, namely, on December 2, 1914, claim was filed by the widow, Mary M. Curtis with the Industrial Accident Board, for the compensation due from the appellant company; that appellant company was duly notified of the claim; that thereafter, on the 26th day of August, 1915, the Industrial Accident Board entered an order by which it ordered, adjudged, and decreed that the appellant, Southwestern Surety Insurance Company, should pay to appellee Mrs. M. Petty-john, now Mary M. Curtis, the sum of $10.50 a week, payable weekly for 360 weeks from and after November 8, 1914, but that, notwithstanding said order of the Industrial Accident Board, the appellant refused to pay said award.

Appellant answered by general denial, and specially denied that the Russell-Coleman Cotton Oil Company had a liability policy obligating the appellant company to pay compensation to the oil company's employés at the time of the injury to Pettyjohn on November 8, 1914, and denied that Petty-john was injured while in the course of his employment. Appellant denied the authority of the Industrial Accident Board to make the award against it, because the award was made without notice to the appellant, and because its policy insuring the Russell-Cdle-man Cotton Oil Company did not cover the injury to Pettyjohn. Appellant denied that it consented to abide by the decision of the said Industrial Accident Board.

There was evidence to sustain the material facts pleaded by appellee.

The first assignment presents objections to the first special issue, which, in effect, was: Did Russell-Coleman Cotton Oil Company, on November 8, 1914, have in force employers’ liability insurance with appellant?

The first proposition finds fault with the expression, “in force,” claiming that those words present a question of law. Those words were used in the light of appellant’s pleading and testimony. Appellant admitted in its answer that it had issued a policy of employers’ liability insurance to the Russell-Coleman Cotton Oil Company, and that the policy had not been canceled at the time of the injury to Pettyjohn, but alleged that the policy covered Russell-Colepian Cotton Oil Company only as a general contractor in the construction and erection of said cotton oil mill; that is, in the construction and erection of its machinery and buildings, and that Pettyjohn was not employed in connection with the construction of said cotton oil mill, but was the night superintendent in the operation of the mill.

The tenor of appellant’s testimony (the testimony varies from appellant’s plea) was that the policy had been canceled and released at the time of the injury. No effort was made by appellant to prove that the terms of the contract were as pleaded by it. The issue made by this testimony was: Had the insurance contract been canceled and released on November 8, 1914? The question could have been put in that form; but the issue was framed from appellees’ point of view, that the contract was in force on that date, meaning that the contract had not been released or canceled. We think the words clearly submitted the question o-f fact to be found by the jury.

The second proposition made under this first assignment is that the contract itself was not introduced in evidence, and therefore it was error to ask the jury whether it had been released or canceled on No-, vember S, 1914. We think the existence of a contract, and the terms or obligations of the contract to pay the compensation sued for, were sufficiently proven by secondary evidence, and appellant’s admissions, to make it the duty of the court to submit the issue as it did. Appellant admitted in its answer, as above mentioned, that it did deliver to Russell-Coleman Cotton Oil Company an employers’ liability insurance contract prior to the injury. The appellant insurance company made the following written report to the Industrial Accident Board:

“Russell-Coleman Cotton Oil Co., San Antonio, Texas.
“As required by rule 5, this will give you notice that compensation policy has been issued covering operations of the above subscriber as indicated below.
“[Signed] Southwestern Surety Insurance Co.,
“By E. C. S.
“Policy No. 0-25809.
“Date of policy, 9/25/14-9/25/15.
“Date canceled, -.
“Number of employes, 25.
“Business, Cotton seed oil mfrs., etc.”

Without objection, the statement of the chairman of the Industrial Accident Board of the state of Texas was admitted, which proved that the Russell-Coleman Cotton Oil Company had a policy of insurance in the Southwestern Surety Insurance Company, Denison, Tex., on the 8th day of November, 1914. Appellant’s witness testified that the policy at the time of the trial was at the home office of the appellant insurance company. Without objection, and without contradiction by appellant, appellee introduced the report of the injury to Pettyjohn, filed .with the Industrial Accident Board by the Russell-Coleman Cotton Oil Company. The report contained the following:

“1. Are you insured to provide payment to injured employes under the Emjdoyers’ Diability Act? Tes.
“2. If so insured, give name and business address of the insurance association or company. Southwestern Surety Insurance Company, Deni-son, Texas.
“Name of injured employe. E'd Pettyjohn.”

This testimony, in the absence of explanation or 'better evidence, which was in the possession of appellant, justifies the finding that at the time Pettyjohn was injured the oil company had a contract with the appellant, and that the contract by its terms provided that appellant would pay Petty-john in accordance with the Employers’ I/lability Act. The court did not err, either in submitting the issue or in the expression thereof. The first assignment is overruled.

The eighteenth and nineteenth assignments present the same objections as the first, and both are overruled.

The second assignment is also overruled, inasmuch as it is a corollary of the propositions presented by appellant under the first assignment.

The complaint of the third and seventeenth assignments is that the evidence established without contradiction that Petty-john was not injured in the course of his employment; the contention being that Pettyjohn was employed as night superintendent of the mill, whereas he was injured while building a bam that belonged to the employer, but which was to be used by Pettyjohn. The third and seventeenth assignments are overruled, because there was testimony that Pettyjohn was working on the oil company’s bam under the orders and control of the oil company and for its benefit. Southern Surety Co. v. Stubbs, 199 S. W. 343.

The fourth assignment is also overruled, because it presents a proposition that is a corollary to the proposition discussed in the third assignment, and logically falls with it.

The fifth and sixth assignments present a question that has no bearing upon appellant’s liability in this suit. The obligation of appellant was made by virtue of the issuance of the contract of employers’ liability insurance, which the appellant notified the Industrial Accident Board was effective from September 25, 1914( to September 25, 1915. The obligation to pay the compensation therein contracted did not depend upon the fact of notice of the contract by appellant to the Industrial Accident Board, and surely did not depend upon such notice being given prior to the injury. It was admitted by all parties that appellant was permitted and licensed by the proper authority to execute such a policy at the time, and that the oil company was a subscriber, within the terms of the Employers’ Diability Act. The appellant company’s consent to be bound was expressed by its written policy, for which it received a satisfactory premium. Both the fifth and sixth assignments are overruled.

The seventh and eighth assignments are also overruled. It was immaterial when the oil company notified the Industrial Accident Board of its insurance contract with appellant. The only notice required under the facts of the present case was the notice to appellant and to the said board of the happening of the injury which notice was given within a reasonable time after the injury. The claim was filed with the 'board for compensation within six months after the accident. As before stated, the oil company was a subscrib.er; the appellant company was authorized to make such contracts as the one sued upon. The issuance of the contract, followed by the injury, created the liability, which was not lost by failure to give timely notice and make timely claim, according to the evidence before us.

The ninth assignment is overruled, for the reason that no error is presented of which appellant can complain. If there was error, as contended, the error was determined by the court in its decree in favor of appellant.

The tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments all predicate error upon the issue of whether or not the insurance company consented to the Industrial Accident Board proceeding toward the adjustment of appellee’s claim for compensation, after the insurance company had been notified by the board that the claim was filed with it. The jury found in answer to the question that the insurance company did impliedly consent to have the board proceed to adjust the claim. As the law here involved is construed ‘by Justice Levy, the jurisdiction of the board to adjust this claim attached as soon as the claim was filed with that board by appellee, and this jurisdiction would adhere, and the board’s final award would bind all parties before it, unless, prior to the final award by the board, the insurance company manifested to the board its objection to the adjustment and its refusal to abide by the final ruling and decision of said board. "Such an objection and refusal, timely made, would deprive the board of proceeding further. Fidelity & Casualty Co. v. House, 191 S. W. 155; Roach v. Texas Employers’ Association, 195 S. W. 328. The evidence in this case shows notice to the insurance company by the board that it would proceed to adjust the claim. The testimony warranted the issue that the insurance company did not manifest its objection to the board’s procedure to adjust the claim, and the testimony warranted the issue that the insurance company did not, before the final award, refuse to abide by the final decision of the board. Assignments 10, 11, 12, 13, 14, and 15 are overruled.

The sixteenth assignment is overruled. The proposition is that the Accident Board’s jurisdiction depends upon the consent of all parties interested; that is, the oil company, the insurance company, and the employs. The proposition is, of course, correct, and is clearly stated and discussed by Chief Justice Phillips in the ease of Middleton v. Texas Power & Light Co., 185 S. W. 556. The facts of this case show that the oil company expressed its consent by becoming a subscriber, the appellant by obtaining its license and permit and issuing the policy, and the appellee herein by filing the claim for compensation.

Appellant calls attention to a fundamental error in the Judgment. The judgment establishes the validity of the award made by the Industrial Accident Board, and this we hold to be correct. The recovery awarded in this case must be limited to the relief plaintiff is entitled to as the beneficiary in a legal award made by such board. That relief entitles plaintiff to recover only such installments as had accrued at the date of the judgment. New York Life Ins. Co. v. English, 96 Tex. 268, 72 S. W. 58; Tex. Emp. Association v. Bryan, 198 S. W. 342. The court erred, under the authorities cited, in awarding a judgment and execution for installments which had not accrued at the date of the judgment, and the judgment is reformed by eliminating all of that portion thereof, which action is taken without prejudice to the right of the beneficiary or beneficiaries to sue for and recover such installments as they mature.

Reformed and affirmed.

        <@zz>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODOES, J.

text:
    OBERTHIER v. OBERTHIER.
    (No. 1840.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 13, 1917.)
    Fraudulent Conveyances <&wkey;174(l) — Title as Between Parties.
    Defendant, with money received as a gift from his uncle, discharged a note, secured by a mortgage on certain personal property. To prevent the second mortgagee from foreclosing, defendant placed the note in his uncle’s private box at the bank, with which he did business. Instead of having the note marked paid, defendant requested the holder to indorse it without recourse. Meld that, as it was the intention of defendant to discharge the note, and as the moneys which he used for that purpose were his own, the note was not a valid asset in the hands of the uncle, notwithstanding defendant’s purpose to deceive other creditors, and so it did not pass to a legatee under the uncle’s will.
    Appeal from Rusk County Court; R. T. Brown, Judge.
    Suit by Mrs. ‘Sarah Oberthier against C. W. Oberthier. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    J. H. Turner, of Henderson, for appellant. R. T. Jones, of Henderson, for appellee.
   On Motion for Rehearing.

HODOES, J.

In this suit the appellant sought a judgment for the sum of $250 upon a promissory note executed by the appellee. It appears from the evidence that the note was payable to M. L. Marwill, and that some time after its maturity it was fully paid off and satisfied by the appellee. At the time of payment Marwill, the holder, at the request of the appellee, indorsed the note without recourse instead of marking it paid. According to the testimony of appellee, which is not contradicted, his uncle, F. H. Oberthier, some time previous to that transaction, gave him the sum of $350, and he used a part of that money in paying the note. That note had been secured by a mortgage upon certain personal property. The same property was covered by a second mortgage in favor of Kan-gerga Bros., other creditors of the appellee. In order to prevent Kangerga Bros, from enforcing their debt, then due and which they were pressing for payment, the appellee delivered to his uncle, F. H. Oberthier, the note in controversy after its payment to Marwill. This delivery was effected by appellee’s placing the note, without the knowledge of P. H. Oberthier, in the latter’s private box at the bank with which he did business. P. H. Oberthier died shortly thereafter, leaving the note among his papers, never having demanded payment. The appellant, his widow, now claims it as a legatee under his will. The appellee defended upon the ground that the assignment of the note to E. H. Oberthier was without any consideration. He pleaded the facts the substance of which is stated above, alleging that the assignment, or pretended assignment, to F. H. Oberthier, his uncle, was for the purpose of securing temporary protection from, other creditors.

The jury found, in response to interrogatories propounded by the court, that the money received by the appellee from his uncle was a gift from the latter’s separate estate, and-that the note was retained by F. H. Ober-thier for the temporary protection of the ap-pellee. Upon these and other findings, not necessary to mention, the court rendered a judgment in favor of the defendant below.

Upon further consideration we have reached the conclusion that the affirmance of the judgment in this case should be placed upon different grounds from those stated in the original opinion. It appears from the testimony and the findings of fact made by the jury and the court that in the transaction with Marwill the appellee fully discharged the note with funds exclusively his own. This had the legal effect of extinguishing the debt and the mortgage which had been given to secure its payment. The incumbrance held by Kangerga Bros, then became, as a matter of law, a first lien on the property. The fraud, if any, was in the scheme to conceal the payment of the note by indorsing a fictitious assignment to F. H. Oberthier. That transaction did not affect the legal right of Kangerga Bros, or those of any other creditor then holding a lien on the property. If as between the appellee and his uncle that indorsement created an obligation to pay the note again, it originated on that date; for the debt and lien could not be treated as a continuation of that which had been extinguished by payment. However improper the deception attempted in this instance may have been, it is not one denounced by our statute concerning fraudulent conveyances. Practically it was a mere attempt to conceal from Kangerga Bros, the fact that a prior lien had been discharged. The evidence shows that there never was any contract between F. H. Oberthier and the appellee regarding the debt. The entire transaction by which the indorsement of the note was made was without the knowledge or the consent of F. H. Oberthier. It was some time after-wards before he was informed of that fact. He could not without his consent be made a party to any such scheme.

We are of the opinion that the appellee is not estopped from proving the true facts which show a payment of the note and the extinguishment of the debt and lien while in the hands of Marwill.

The judgment of the county court will therefore be affirmed.

The former opinion filed in this case will be withdrawn.
      <&wkey;>For otter casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. TEAL.
    (No. 1889.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 18, 1918.
    Rehearing Denied Jan. 31, 1918.)
    1. Appeal and Error &wkey;>719(l) — Error Apparent on Fac® op Record-Reversal.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1607, providing that in all cases of appeal or writ of error to the Courts of Civil Appeals the trial shall be on an error of law assigned or apparent on the face of the record, where the record discloses error apparent on its face, the judgment must be reversed, and judgment rendered in appellant’s favor, though the assignments of error cannot be sustained.
    2. Covenants <&wkey;100(2) — Covenant of Warranty — Breach — Judgment Foreclosing Vendor’s Lien.
    Judgment in favor of the holder of vendor’s lien notes, foreclosing the lien he asserted against the land, did not constitute a breach of covenant of general warranty by the grantee of the purchaser, who conveyed to others, since a cause of action for a breach of covenant by the vendor against an incumbrance on the land does not arise until the land is sold under the judgment enforcing it.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Suit by A. J. .Sanders against G. H. Carian, J. F. Bedgood, and C. E. Teal, wherein, at the instance of Teal, J. W. Davis was made a party.» From the judgment in so far as in Teal’s favor against him, Davis appeals.
    Judgment reversed, and judgment rendered.
    By his deed made January 1, 1914, J. F. Bedgood conveyed about one acre of land in Camp county to G. H. Carian, who conveyed a part thereof to appellant Davis, who conveyed the same part to one Hattaway and appellee, Teal. Hattaway conveyed his interest in said part to appellee. The consideration to Bedgood for the conveyance to Carian, according to recitals in the deed, was $1 paid in cash and Carlan’s two promissory notes for sums aggregating $700 secured by the vendor’s lien retained on the land. The notes were sold and assigned to A. J. Sanders by Bedgood, who guaranteed the payment thereof. This suit was by Sanders against Carian as the maker and Bed-good as the indorser and guarantor of the notes, for the amount thereof, including interest and attorney’s fees, and against Carian and Bedgood and appellee, who, it was alleged, claimed an interest in the land, for a foreclosure of the vendor’s lien claimed against it. The consideration to appellant for the part he conveyed to Hattaway and appellee was $1,000 then paid to him, and the assumption by them of the payment of two notes for $250 each made by defendant Carian. The deed from appellant recited that he had “granted, sold, and conveyed,” and did thereby “grant, sell, and convey,” the land therein described to Hattaway and appellee, and also contained a covenant of general warranty. At the instance of appel-lee appellant was made a party to the suit; and appellee, after alleging that appellant had warranted the title as stated, prayed that, if Sanders prevailed in his suit so far as it was for- a foreclosure, he have judgment against appellant for damages, as for a breach of said warranty. The trial was to the court without a jury, and resulted in a judgment in Sanders’ favor against Carian and Bedgood for $984.50 as the amount due on the notes made by Carian, and foreclosing the vendor’s lien retained to 'secure the payment of said notes; in favor of appellee against appellant on the latter’s warranty for $750; and in favor of appellant against Carian on the latter’s warranty for $750. The appeal is by appellant alone against the judgment so far as it was in appellee’s favor against him.
    Smith, Follin & Bryson, of Pittsburg, for appellant. W. D. Suiter and Beavers & Wilkinson, all of Winnsboro, for appellee.
   WILLSON, C. J.

(after stating the facts as above). We are inclined to think that none of the assignments in appellant’s brief should be sustained, and that, if those assignments alone should be considered, the judgment should be affirmed. But an examination of the record with reference to appel-lee’s suggestion that the appeal was for delay only, and that the judgment therefore should be affirmed with damages, under article 1629, Vernon’s Statutes, discloses error apparent on the face thereof which requires that it he reversed, and that the judgment be here rendered in appellant’s favor. Article 1607, Vernon's Statutes; Nasworthy v. Draper, 28 S. W. 564; Bates v. Hill, 144 S. W. 288. It appears from appellee’s pleadings that his claim of a right to the recovery he had against appellant was based on the fact that the latter, when he conveyed a part of the land to the former and one Hatta-way, warranted the title thereto. The theory was that a judgment in Sanders’ favor foreclosing the lien he asserted against the land would constitute a breach of appellant’s covenant of warranty. That the theory is wrong was determined by the Supreme Court in Seibert v. Bergman, 91 Tex. 411, 44 S. W. 63, where it was held that a cause of action for a breach of covenant by the vendor against an incumbrance on the land “did not arise until the land was sold under the judgment enforcing it.”

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant, but the judgment will be without prejudice to the right of appellee to maintain a suit against appellant on the covenants in his deed if appellee should lose the land as a result of a sale thereof under the Sanders judgment.
      <®=»E'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    WAGNER v. ROBISON, Com’r of General Land Office et al.
    (No. 2932.)
    (Supreme Court of Texas.
    March 6, 1918.)
    1. Mines and Minerals <®=>6 — Prospecting-Permits — Prerequisites.
    Under Acts 33d Leg. c. 173, § 3 (Vernon’s Sayles’ Ann. Giv. 1914, art. 5994b), requiring applicant for prospecting permit on surveyed lands to first file application with the clerk of the county wherein the lands lie, and section 4 (article 5904c), requiring filing with the survey- or if the land is island, salt water lakes, bays, etc., proper filing, in accord with the character of the land, is essential to the right to a permit.
    2. Courts <§=>207(4) — Mandamus — Original Application — Jurisdiction.
    Where relator, seeking to compel issuance of prospecting permit, alleged the land had been surveyed, which the defendant denied, there was an issue of fact necessary to be determined as determinative of rights of the parties, beyond the jurisdiction of the Supreme Court, on original application in mandamus.
    Mandamus by Abe W. Wagner against J. T. Robison, as Commissioner of the General Land Office, and L. H. Bailey joined as respondent.
    Petition dismissed for want of jurisdiction.
    Love, Channell & Pouts and Wagner & Wagner, all of Houston, for relator. T. H. Stone and H. E. Stephenson, both of Houston, for corespondent Bailey. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for respondent Robison.
   PHILLIPS, C. J.

The relator here seeks a mandamus to require the Commissioner of the General Land Office to issue Mm, under the Act of the Thirty-third Legislature, (Chapter 173), a permit to prospect for oil and gas upon a certain tract of land in Harris County. A like permit covering the same land has been previously issued by the Commissioner to L. H. Bailey, who is joined as a respondent. The issuance of the previous permit to Bailey is alleged as the Commissioner’s reason for refusing the relator’s application. The relator assails the validity of the permit granted to Bailey upon the ground that it is violative of the constitutional provision declaring, “Nor shall any member of the legislature be interested, either directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected,” — Section 18 of Article 3 — he having been a member of the Legislature which adopted the Act.

Section 3 of the Act provides that an applicant for the prospecting privilege upon any of “the surveyed lands” of the State with which it deals, shall first file his application with the County Court Clerk of the county in which the land lies.

Section 4 declares that if the application be sought as to “any of the State’s islands, salt water lakes, bays, marshes, reefs, and fresh water lakes owned by the State, or in , any of the unsurveyed public land,” it shall be first filed with the County Surveyor of the county where the area is situated.

The purpose of these requirements is clearly revealed in the Act and need not be discussed. Their observance, according to the class of the land or area for which the prospecting permit is desired, is plainly essential to the right to have it issue.

The relator avers that the tract of land involved is a part of the “surveyed” public land of the State. His application was filed with the Clerk of the County Court of Harris County, who was the proper official with whom to file it if the land is of that class. On the other hand, the respondent Bailey declares under oath in his answer that the tract constitutes no part of the “surveyed” land of the State, but is wholly submerged land, lying wholly under water in Tabbs Bay, a salt water bay and an arm of San Jacinto Bay. Whether the relator has complied with the Act in the matter of filing his application for the permit, which, apart from any other question, would be necessary to entitle Mm to a mandamus, depends upon the solution of this issue made by the pleadings. It presents an issue of fact which we are without power to determine.

The petition for the writ of mandamus is therefore dismissed for want of jurisdiction. Edwards v. Terrell, 100 Tex. 26, 93 S. W. 426.


author: PRENDERGAST, J.

text:
    FOX v. STATE.
    (No. 4906.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    Criminal Law <§=31159(3) — Appeal—Review —Trial—Jury Question.
    Where the evidence as to defendant’s guilt was conflicting, the question was for the jury, and the verdict cannot be disturbed.
    Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.
    O. P. Eox was convicted of manslaughter, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

There are no bills of exception and no complaint of the court’s charge. That appellant stabbed and cut deceased with his knife and killed him is an established fact, and not disputed.

The testimony by the state was clearly sufficient to show appellant guilty of manslaughter, if not of murder, and to disprove appellant’s claim that he killed deceased in self-defense; while the testimony of appellant, if believed, might have been sufficient to have authorized Ms acquittal. It was a question for the jury, and they solved it against appellant. Tlie charge of the court was full and apt submitting every issue in appellant’s favor which was authorized or raised by the testimony. There is no complaint in any particular to the court’s charge. Under the circumstances we are not authorized to disturb the verdict.

The judgment is therefore affirmed.
      <§^For other cases see same topic and KEY-NUMBJER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    CLAYTON v. STATE.
    (No. 4890.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Juey <S=>70(8) — Venire—Discharge—Spe-cial Venire.
    Where there were 84 jurors selected for the term and 60 were discharged without being drawn or serving on a venire, the drawing of the remaining 24 and the adding of 24 names by the sheriff, in a capital case, was not a compliance with Code Cr. Proc. 1911, art. 661, relating to drawing of special venire, and a conviction cannot stand.
    2. Juey @=^82(3) — Capital Cases — Punishment Imposed — Right oe Dependant.
    That the jury imposed imprisonment, instead of death, in capital case, does not affect the right of the defendant to a venire in accordance with law relating to capital cases.
    3. Homicide @==>164 — Blindness oe Deceased-Evidence.
    In homicide case, evidence that deceased was nearly blind is inadmissible unless defendant knew of the blindness.
    4. Criminal Law @=>552(1) — Blindness oe Deceased — Knowledge oe Accused — Circumstantial Proof.
    That defendant in homicide case had knowledge that deceased was nearly blind may be shown from circumstances.
    Appeal from District Court, Uvalde County ; Joseph Jones, Judge.
    G. E. Clayton was convicted of murder, and he appeals.
    Reversed and remanded.
    L. Old and T. P. Hull, both of Uvalde, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for murder.

When the indictment was returned on the 25th of October, 1917, appellant and the district attorney had an agreement to set the ease for the 7th of November, and the district attorney to reguest the drawing of a special venire. The district attorney went away, and in accordance with this agreement appellant’s counsel presented this matter to the court. The court asked appellant’s counsel if he would be ready for trial. 1-Ie indicated he thought he would not he ready; therefore the court refused the request. On the 29th of October, however, the court of his own motion, and it seems without the knowledge of appellant or his counsel, ordered the case set down for trial on the 7th of November and the drawing of a special venire, directing the manner and terms of such drawing. The bill of exceptions is quite lengthy, and all of the facts stated in the bill were agreed to by the district attorney and approved by the court. The substance of this bill shows as above indicated, and that the court directed the drawing of the regular jury for the third week of court, which begun on the 5th of November; this case being set for the 7th of that month. This consisted of 24 names. The court also directed the sheriff to select a sufficient number of jurors from the county at large to finish the number ordered, which was 48. The 48 then were to constitute the special venire. The 24 jurors for the third week of court, commencing on the 5th of November, were drawn from the box; the other 24 were not, and the sheriff filled out the special ve-nire list with those he summoned from the county at large. It is also shown that the jury for the first week of court, commencing the 22d of October, consisted of 36 jurors for the week; that they were impaneled for service but were discharged after one day’s service. The jurors for the second week, commencing on the 29th of October, consisted of 24 jurors; they were impaneled and served one day and were discharged. As before stated, the jurors for the third week, commencing the 5th of November, consisted of 24 jurors. These added together would make a total number of 84 regular jurors for the term. The names of none of these jurors were placed in the box to be drawn as special veniremen, except those of the third week. There is no question of the above-stated facts.

Appellant moved to quash the special venire because not drawn in accordance with the statute, and on further grounds. We are of opinion that the motion was timely taken and should have been sustained. Article 661, O. O. P., provides the manner of drawing a special venire. It provides that, whenever the names of the persons selected by the jury commissioners to do jury services for the term shall have been drawn one time to answer summons to a venire facias, then the names of the persons selected by the commissioners, and which form the special ve-nire list, shall be placed upon tickets of similar size and color of paper, and the tickets placed in a box and well shaken up. Prom this box the clerk, in the presence of the judge, in open court, shall draw the number of names required for further venire service, and shall prepare a list of such names, in the order in which they are drawn from the box, and attach such list to the writ, which is to be delivered to the sheriff; and it further provides it is the duty of the clerk to prevent the name of any person from appearing more than twice on all of such lists. This article is in full force and effect, and it would seem, not only by its terms, but under the decisions, to constitute the means of selecting special venires in counties other than those in which juries are drawn from a jury wheel. When this list has been made out as drawn in accordance with the above statute, it shall he delivered to the' sheriff, who shall summon the jurors. There is no reason shown why this law should not have been followed and the jury drawn from the 84 jurors drawn for the term. It is shown and agreed that this was the only capital case on the docket; therefore none of the jurors could have served on any previous venire during that term. Under the terms of the statute, supra, the court was not justified in ordering the venire drawn and summoned as was done. This would in fact hardly be called a special venire. Only 24 names were placed upon the venire list handed the sheriff by the elerk out of the 48. The 24 to be summoned by the sheriff were placed on the list subsequently; at least, were not drawn by the clerk. There was no question of waiver on the part of the defendant. He urged his objections, but they were overruled. The court qualifies the bill, or makes the statement that the district attorney waived the death penalty. We are not impressed with this as a reason for the manner of drawing the special venire. If there is any virtue in the waiver of the death penalty, that might have operated to excuse the drawing of the venire at all; but the writer is clearly of the opinion that the district attorney has no right to waive the verdict of the jury or a part of the legal penalty. He could have, with permission of the court, dismissed the prosecution against appellant as to murder and tried him for manslaughter; but this would not •justify his waiving a part of the penalty for the offense for which he was being prosecuted.

Life imprisonment is part of the punishment in capital'cases. The jury may exercise their authority and power in awarding life imprisonment in place of the death penalty. It is an alternative punishment. But it did not operate to deprive defendant of his right to have a venire, and when we go to the record it is shown-that challenges for cause were urged because of the questions of conscientious scruples in awarding the death penalty. It seemed to have been exercised with reference to four jurors. Submitting the punishment for murder, the court instructed the jury that the punishment shall be by death, confinement in the penitentiary for life, or for any term of years not less than five, and told them if they should convict for murder they might fix his punishment at death or confinement in the penitentiary for life, or for any term of years not less than five. It is deemed unnecessary to review the authorities and the decisions of the court and the changes in legislative enactments during recent years. There have been quite a number of these changes, and the decisions have been changed, of course, to meet the amended legislation to conform the jurisprudence to these amendments. From no view point, as we understand this record, was a special venire drawn according to law. In fact, it may be said that the venire as drawn was not a legal one, and was not within the terms of any of the statutes. It was not one of those emergencies where no jurors had been drawn by the commissioners; therefore that statue had no application.

There is another question presented by bill of exceptions in regard to the admission of certain testimony which showed that the deceased was blind or nearly so. The bill is not right clear and distinct; but, if upon another trial this evidence is sought by the state, defendant’s objection would be well taken unless he knew of the condition of the eyes of the deceased at the time of the homicide. If he was awai;e of the partial blindness of deceased at the time of the homicide, it would be admissible; otherwise it would not be. This knowledge may be shown from circumstances.

The application for a continuance is not discussed. It is not deemed necessary under the disposition of the ease.

There are quite a lot of criticisms of the court’s charge. We deem it unnecessary to go into an extended review of these matters. The charge is fairly well written. There may be some criticism of the charge on self-defense which seems to have some merit. To meet this appellant asked a special charge which, we think, should be given upon another trial, or the court’s charge changed so as to conform with the matter set out in the requested instruction. We deem it unnecessary to discuss it. It is of no particular value to any other case except the instant case in view of another trial, but in the record it is known as special charge No. 2 requested by appellant. The court refused it because he says it was covered by the main charge. We are of opinion there is enough difference in this charge and that given by the court to have justified, if not required, the court to give the special instruction.

The judgment is reversed, and the cause remanded.
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text:
    PARKER v. STATE.
    (No. 4754.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Criminal Law <§==>721(3) — Conduct of Counsel — Comments on Defendant’s Failure to Testify.
    A statement, by the state’s attorney to the jury, that “defendant is guilty as shown by circumstances so strong that he could not face you and give you a satisfactory explanation,” alluding to defendant who had not testified, was in violation of Vernon’s Ann. Code Cr. Proc. 1916, art. 790, providing that defendant’s failure to testify in his own behalf shall not be alluded to or commented on by counsel, and constituted reversible error.

      2. Homicide ®=3l09(l) — Evidence—Admissibility.
    A witness in a murder case could testify that deceased was in his employé as a driver of his car and drove it on the night of the homicide, but testimony that he received a particular telephone call and sent the driver in response thereto was inadmissible.
    3. Witnesses <s¿>345(2) — Impeachment—Conviction.
    In a murder case any witness may be impeached by showing that he has been convicted or properly indicted for a felony or misdemeanor involving moral turpitude, but a charge of aggravated assault and a conviction of simple assault is inadmissible.
    4. Witnesses <®^>345(1) — Impeachment—Ajr-best.
    Evidence in a murder case that a witness had been in jail or arrested for a matter not involving moral turpitude was not admissible in impeachment.
    5. Homicide <S=o169(2) — Evidence—Admissibility.
    In a prosecution for murder where the state proved that on the night of the homicide defendant said that he was going to whip the driver of witness’ car who was the deceased, the state might prove by such witness that deceased was the only driver of any car he had at that time.
    6. Homicide <S^170 — Evidence—Admissibility.
    In a prosecution for murder it was not error to admit testimony that defendant was wearing a hat like the one the witness wore on the night of the homicide, which hat was exhibited to the jury.
    Appeal from District Court, Milam County; John Watson, Judge,
    Tom Parker was convicted of murder, and he appeals.
    Reversed and remanded.
    Lyles & Lyles and Chambers & Wallace, all of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appeals from a conviction for murder.

The evidence was wholly circumstantial to establish his guilt, lie did not testify.

Appellant has this bill which, after the proper heading, shows:

“That on the trial of the above styled and numbered cause, that after the introduction of the evidence had been closed by both the state and the defendant, and after the charge of the court had been read to the jury, and while the county attorney, the Hon. Roy Baskin, was opening the case for the state, that he did say to the jury, and use the following language substantially: ‘Gentlemen of the jury, the defendant is guilty as shown by circumstances so strong that he could not face you and give a satisfactory explanation.’
“And be it further remembered that the defendant had not testified in the case, or offered to testify, and that immediately upon the making of said statement by the county attorney the defendant’s counsel did thereupon except to the same, as a direct reference to the fact that the defendant had not testified in the case and that the language used was a direct charge that the reason that the defendant did not take the stand and testify was because he could not face the jury with a satisfactory explanation, and assumed from such fact that the reason the defendant had not taken the stand was -that he had committed the' homicide, and that said ' conduct and statement by the county attorney, used under the circumstances, was a direct violation of the statute, prohibiting a reference to the fact of the defendant’s failure to testify, was an invasion on the defendant’s rights and was highly prejudicial to the defendant and was irremediable, and the defendant here now tenders this his bill of exceptions to the argument and conduct of the county attorney, as aforesaid, and asks' that the same be examined, approved and ordered filed as a part of the record in this case, and which is accordingly done.”

This bill is approved by the judge without an explanation or qualification. The bill, as seen, does not show that the court made any ruling whatever. That the remarks of the county attorney were a direct allusion to the appellant’s failure to testify, and, while brief, that it was a comment on that fact to the jury, cannot be doubted. It was in direct violation of the statute (article 790, O. C. P.) and the many decisions of this court holding that such action by the county attorney presents reversible error. See decisions noted in Vernon’s Ann. Orim. Stats, under said article.

Appellant has another bill objecting to the testimony of Mr. Wilkerson to the effect that some 20 minutes before deceased was killed he received a ’phone call from “100, ” which was the whorehouse, and that he sent deceased, who was driving his car that night, down there in response to said call. When this testimony was offered and appellant objected thereto, the county attorney said that he would afterwards introduce testimony showing the connection and relevancy of such testimony. The bill shows that he did not later do that at all. The witness could testS fy properly that deceased was in his employ as a driver of his car and drove it that night, but that he received this particular call, and sent him to that particular place in response-thereto, might not be admissible unless it was shown to have had some bearing on'-some-fact in the case. How it could have been injurious to appellant is not shown. It is perhaps harmless. But, if objected to on another trial, unless in some way connected up so as to show its materiality it should not be admitted.

Any witness can be impeached by Showing, when not too remote, that he has been convicted or properly indicted for a felony or a misdemeanor involving moral turpitude ; but no other misdemeanor convictions are admissible for impeachment purposes. These principles are so well established by so many decisions we cannot understand how it could be contended that a charge for aggravated assault and a conviction of simple assault in any other misdemeanor case not involving moral turpitude could be admissible. The court therefore did not err in excluding such testimony in this case, where an attempt was made to introduce such misdemeanor convictions to impeach the state’s witness Adge Robinson. Nor was evidence that he had been in jail or arrested on any such charge admissible.

The state proved that, on the same night deceased was killed, appellant said that he was going to whip the driver of Mr. Wilkerson’s car. He did not call the name of the deceased. It was therefore permissible for the state to prove by Mr. Wilkerson that deceased was the only driver of any car he had at that time.

Nor did the court err in permitting the witness Penn Wolf to testify, in substance, that appellant was wearing' a hat like the one he (the witness) wore the night deceased was killed, and in then procuring his hat and exhibiting it to the jury and testifying that the hat deceased wore that night was something like his “flat top.” This testimony was admissible.

As the case is to be reversed, it is unnecessary to pass on whether the court qrred in overruling his motion for a continuance.

For the error above pointed out, the judgment is reversed, and the case remanded.
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text:
    EARNEST v. STATE.
    (No. 4897.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Intoxicating Liquors <§=^219, 222 —Indictment — Gift to Minor — Uncertainty. .
    . An indictment, that defendant gave intoxicating liquor to one named, “then and there being under the age of 21 years without the written consent of the parent or guardian * * * of the said --, against the peace,” etc., was too uncertain as to who was the minor and as to consent.
    2. Intoxicating Liquors <®=o159(2) — Minors —Knowledge. f,
    In prosecution for giving intoxicating liquors to minor, the state must show, by evidence positive or circumstantial, that defendant knew that one obtaining liquor was a minor.
    3. Intoxicating Liquors <⅝^>236(15) — Minors — Knowledge oe Minority — Proof.
    In prosecution for giving intoxicating liquor to minor, mere proof that the girl obtaining liquor was only 17 was insufficient to warrant conviction, in the absence of evidence as to her size and development.
    4. Witnesses <®=374(1) — Bias—Motive.
    • In prosecution for giving intoxicating liquor to minor girl, it was error to exclude evidence that witness testifying as to giving of liquor had.reasons and motives for so testifying.
    5. Criminal Law ⅞⅛=>730(13) — Misconduct of Prosecuting Attorney.
    In prosecution for giving intoxicating liquor to minor girl, it was reversible error for court not to admonish jury, where county attorney stated that defendant was indicted for rape; there being no evidence introduced to that effect.
    6. Criminal Law <S^789(3) — Reasonable Doubt — Instructions.
    In prosecution for giving ■ intoxicating liquor to minor, it was error to refuse to instruct that the state must prove beyond reasonable •doubt that defendant knew person obtaining liquor was a minor.
    Appeal from Motley County Court; A. B. Crane, Judge.
    Dan Earnest was convicted of giving intoxicating liquor to a minor, and lie appeals.
    Reversed and remanded.
    Geo. L. Mayfield, of Plainview, Jas. A. Stephens, of Benjamin, and G. E. Hamilton, of Matador, for appellant. E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The charging part of the indictment is as follows: That Dan Earnest, on the 15th day of November, 1916, in the county of Motley and state of Texas, “did then and there unlawfully and knowingly give and cause to be given spirituous, vinous and intoxicating liquor to Hattie Williams, then and there being under the age of 21 years without the written consent of the parent or guardian or of some one standing in the place and stead of parent or guardian of her the said-, against the peace and dignity of the state.”

Motion was made to quash as well as in arrest of judgment. We are of opinion this indictment is not sufficient. It leaves it in doubt as to whether the minority is charged as to Hattie Williams or defendant, and also as to the question of consent. This uncertainty is re-enforced by the fact that, instead of charging that the parent or guardian stood in such relation to Hattie Williams, it fails to set out her name, and leaves it blank. More care and caution should be taken in writing indictments charging statutory offenses. It could have been just as easily charged, and should have been, that if it was intended to charge appellant with giving intoxicating liquor to Hattie Williams, she, Hattie Williams was then and there under the age of 21 years. This would have been specific, and would have raised no question for decision on appeal. Upon another trial, either proper indictment or complaint and information should be drawn in the terms of the law.

In order to constitute this offense the evidence must show that the indicted party knowingly gave or sold intoxicants to a minor. The evidence must show, not only the minority, but knowledge of that fact on the part of the accused. This may be done by circumstances, in the absence of positive evidence. The only evidence in the case bearing upon the age of Hattie Williams was that she was 17 years of age last July, which would make her in her eighteenth year at the time of the trial. Under repeated decisions of this court this evidence is not sufficient to show knowledge on the part of the accused of the minority. The cases are collated by Mr. Branch in his Annotated P. O., p. 685. Hunter v. State, 18 Tex. App. 448, 51 Am. Rep. 319; Williams v. State, 23 Tex. App. 70, 3 S. W. 661; Schurzer v. State, 25 S. W. 23; Henderson v. State, 37 Tex. Cr. R. 79, 38 S. W. 617; Sinclair v. State, 70 S. W. 218; Williams v. State, 65 Tex. Cr. R. 624, 145 S. W. 612. , In the Henderson Case, supra, the evidence was that the party to whom the whisky was sold was 16 years of age. This was held not sufficient to show knowledge on the part of the accused. There is nothing to show the appearance of Hattie Williams, as to her size, development, etc., to place appellant upon notice of the fact that she was a minor.

Evidence was also offered to show that one of the state’s witnesses had reasons and motives for testifying against appellant with regard to the fact that he saw appellant give whisky to Hattie Williams. This was reserved in at least two bills of exception. Upon another trial this testimony should be admitted. It is unnecessary to go into details. The bias and motives 'of witnesses are matters which may be proved to affect the credibility and the weight to be given testimony of witnesses.

There is also a bill of exceptions reserved to remarks of the county attorney, and also to charges reguested withdrawing these remarks, which were refused. One of the bills shows that, while the defendant was cross-examining the witness Hattie Williams, she was asked if there was anything done down there at that creek that night that was improper or wrong by any one of those boys. To this the county attorney objected, and remarked:

“I object because that question is being asked by counsel for no other purpose under the sun except for the benefit of this defendant in a felony case, wherein he is indicted for rape on Bessie Hobbs.”

Prompt exception was reserved, but without avail. The county attorney also used this language in his argument:

“You should not allow men like this man to ruin little girls like the Hobbs girl, who is now in a rescue home.”

He also remarked:

“My God Almighty, men! are you going to turn a devil like this loose, when he was running around here ruining innocent little girls like Hattie Williams, when he ought to have been at home with his wife and children”

—-and further:

“He is charged with rape, it is true, but I haven’t got anything to do with that, the district attorney will take care .of that.”

Exceptions to these remarks were promptly reserved and special charges asked, but without avail. These remarks were improper. There is no evidence in the record that appellant had committed rape upon the Hobbs girl, or that he committed rape at all. This was a statement by the county attorney outside the record. It is also stated in the bill that the county attorney referred to other and different offenses that were not in evidence, and which defendant had no opportunity to defend, and that such argument and statements were not justified nor warranted by any evidence in the record. This was error, and of such a nature that it requires a reversal of the judgment. Upon another trial the prosecuting officer will refrain from using such language.

Charges were asked by appellant’s counsel and refused by the court. Among others, this charge was asked:

“You are instructed at the request of the defendant that in this character of case it is incumbent-on the state to prove beyond a reasonable doubt that the defendant gave the intoxicating liquor, or caused it to be given, if he did so, to the prosecuting witness, Iiattie Williams, knowing at the time that she was under 21 years of age; and, unless you find from the evidence beyond a reasonable doubt that defendant gave intoxicating liquor to Hattie Williams, and knew at the time he did so that she was a minor, you will acquit him, and so say by your verdict.”

This charge ought to- have been given in view of the fact that the only evidence in the record as to the minority of the girl was that she was 17 last July,, and only this evidence was introduced. The authorities cited above with reference to this matter as collated by Mr. Branch, we think, demand that this charge be given the jury..

The judgment will be reversed, and the cause remanded.
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author: MORROW, J.

text:
    CHUMLEY v. STATE.
    (No. 4904.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <⅞=31076(4)—Appeal Bonds— Approval by Court.
    Under Code Or. Proc. 1911, art. 904, the appeal bond in a criminal case must be approved by the court, as well as by the sheriff; and, where not so approved by the court, the appeal will be dismissed on motion of the state.
    ^.ppeal from District Court, Sabine County; W. T. Davis, Judge.
    . Henry Chumley was convicted of a felony for unlawful sale of intoxicating liquors, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted for a felony on the charge, by indictment, for the unlawful sale of intoxicating liquor.

The Assistant Attorney General, on behalf of the state, has filed a motion to dismiss the appeal because of the insufficiency of the appeal bond. There is found in the record an appeal bond in the sum of $2,000, which is approved by the sheriff. The statute, article 904, C. C. P., requires that the bond shall be given in an amount to be fixed by the court as well as the sheriff. It has been held that, unless a bond shows the approval of the court it is insufficient, and will necessitate a dismissal of the appeal. Wells v. State, 68 Tex. Cr. R. 277, 150 S. W. 1163; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053.

In view of the record and the authorities, the motion to dismiss is sustained.
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author: DRENDBRGAST, J.

text:
    JOHNSON v. STATE.
    (No. 4900.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Criminal Law <§=>814(5) — Instructions— Elements of Offense — “Vagrant.”
    Instruction permitting conviction of vagrancy, under Vernon’s Ann. Pen. Code 1916, art. 608e, making it unlawful to solicit orders for intoxicating liquors in prohibition territory, and Pen. Code 1911, art. 635, making one who unlawfully solicits orders for intoxicating liquors a vagrant, in the absence of evidence that the territory in which accused solicited such orders was prohibition territory, was erroneous.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrant.]
    2. Criminal Law <§=>77S(5) — Instructions— Form.
    In prosecution for vagrancy, charge to acquit if the jury believes accused not guilty on either count is objectionable, as placing on accused the burden of proving his innocence.
    3. Witnesses <§=>845(1) — Impeachment—Other Offenses.
    It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any misdemeanor involving moral turpitude, but it is not permissible to thus impeach any witness by proving his prosecution or conviction of any other misdemeanor.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Tiff Johnson was convicted of vagrancy, and he appeals.
    Reversed and remanded.
    Dupree & Crenshaw, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DRENDBRGAST, J.

Appellant prosecutes this appeal from a conviction of vagrancy.

Article 606e, 1 Vernon’s Crim. Stats., makes it an offense for any person to solicit orders for any intoxicating liquors in any territory where prohibition is in force. Article 635, P. O., prescribes that any person who unlawfully solicits orders for intoxicating liquors is a vagrant. The complaint and information herein, among other things, in one count, alleged that, on or about September 1, 1917, and thence continuously to the day of the filing of the information, which was on September 13tb, appellant, “did then and there unlawfully solicit orders for intoxicating liquors.” Neither the complaint nor information alleged that prohibition was in force or ever had been in Hill county, where the soliciting was alleged to have been done.

The only law known to ns which makes it unlawful to solicit orders for intoxicating liquors is article 606e, stated above. There was no testimony showing that prohibition was in force in I-Iill county, even if this could have been proven without alleging it. The court by its charge expressly authorizes appellant's 'conviction for unlawfully soliciting orders for intoxicating liquors, without any evidence that prohibition was in force. Appellant objected to Uiis in various ways, and made and saved the point in every particular. The court’s charge, therefore, authorizing appellant’s conviction on this count, was error.

The court’s charge, to the effect that if the jury believed the defendant is not guilty under either count of the indictment, is objectionable, and was properly objected to.. This charge, in the language used, rather places the burdén upon appellant of proving bis. innocence.

It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any misdemeanor involving moral turpitude, but it is not permissible to thus imqpeach any witness by proving his prosecution or conviction of any other misdemeanor. The state was permitted, over appellant’s objection, to prove by him that he had before been convicted for bootlegging. It is always understood that by bootlegging is meant illegally selling intoxicating liquor in prohibition territory. It might, or might not, be a felony in the given territory. Appellant’s bill, objecting to this, does not show whether appellant’s conviction was for a misdemeanor or a felony, and hence we cannot tell from his bill whether this testimony is admissible or not for impeachment.

Reversed and remanded.